PEOPLE v. SMITH

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Steven SMITH, Appellant.

Decided: November 24, 1997

Before COPERTINO, J.P., and SULLIVAN, PIZZUTO and LERNER, JJ. Denis E. McGuinness, Washingtonville, for appellant. Francis D. Phillips II, District Attorney, Goshen (Gerald D. D'Amelia, Jr., of counsel), for respondent.

Appeals by the defendant from two judgments of the County Court, Orange County (Byrne, J.), both rendered November 1, 1994, convicting him of robbery in the first degree, robbery in the second degree, burglary in the second degree, and grand larceny in the fourth degree under Indictment No. 93-00529, and criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fourth degree under Indictment No. 93-00598, after a nonjury trial, and imposing sentences.   The appeals bring up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgments are modified, on the law, by directing that the sentences imposed under Indictment No. 93-00529 shall run concurrently with the sentences imposed under Indictment No. 93-00598;  as so modified, the judgments are affirmed.

 The court properly denied suppression of physical evidence.   This defendant raises essentially the same challenge to the stop of the vehicle in which he was arrested as was raised by his codefendant Kevin Vorhees.   As this court stated in People v. Vorhees, 229 A.D.2d 553, 554, 646 N.Y.S.2d 30, “[t]he conduct of the occupants of the vehicle was not the direct result of any unlawful police activity, but was the result of an independent act (see, People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383;  People v. Townes, 41 N.Y.2d 97, 390 N.Y.S.2d 893, 359 N.E.2d 402).   As the [New York State] Troopers approached, one of the occupants of the vehicle reached for a shotgun, turned and pointed the muzzle of the shotgun at one of the Troopers, and yelled ‘go, go, go’ to the [co]defendant, who was the driver.   This conduct established probable cause for the arrest of the occupants of the vehicle (see, People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562).   Therefore, any possible taint of the prior police conduct was dissipated (see, People v. Mercado, 229 A.D.2d 550, 645 N.Y.S.2d 835)” (People v. Vorhees, supra, 229 A.D.2d at 554, 646 N.Y.S.2d 30).

 Additionally, the defendant's contention that the trial court erred by failing to impose sanctions against the People for the People's failure to maintain certain Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881;  CPL 240.45[1][a] ) is without merit.   The defendant failed to demonstrate that he suffered any prejudice, and was, therefore, not entitled to a sanction against the prosecution (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134;  People v. Mitchell, 212 A.D.2d 737, 622 N.Y.S.2d 967;  People v. Grice, 203 A.D.2d 587, 611 N.Y.S.2d 25).

 However, the sentences under the two indictments must run concurrently (see, Penal Law § 70.25[2] ).   The record supports the conclusion that all of the convictions under Indictment No. 93-00529 arose from the same act for which the convictions under Indictment No. 93-00598 also arose.

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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