PEOPLE v. CROOM

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

The PEOPLE, etc., Respondent, v. Sharif CROOM, Appellant.

2013–10134

Decided: April 03, 2019

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ. Paul Skip Laisure, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle O'Boyle of counsel), for respondent.

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Joseph A. Zayas, J.), rendered October 17, 2013, convicting him of robbery in the first degree (3 counts), robbery in the second degree, criminal possession of stolen property in the fourth degree (12 counts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court rendered February 26, 2014, convicting him of robbery in the first degree (5 counts) and robbery in the second degree (5 counts), upon a jury verdict, and imposing sentence.  The appeal from the judgment rendered October 17, 2013, brings up for review the denial, after a hearing (Arthur J. Cooperman, J.), of those branches of the defendant's omnibus motion which were to suppress identification evidence and statements he made to law enforcement officials.

ORDERED that the judgments are affirmed.

We agree with the Supreme Court's denial of those branches of the defendant's omnnibus motion which were to suppress the showup and lineup identifications, and the defendant's statements to law enforcement officials.  The police had reasonable suspicion to stop the vehicle in which the defendant was riding based on the description of the vehicle given by the complainant, the proximity of the vehicle to the area where the robbery had occurred, and the fact that the stop was made about two minutes after the police received a 911 emergency telephone call reporting the robbery, late at night in a residential area (see People v. Ceruti, 133 A.D.3d 610, 20 N.Y.S.3d 378;  People v. Argyris, 99 A.D.3d 808, 952 N.Y.S.2d 254, affd 24 N.Y.3d 1138, 3 N.Y.S.3d 711, 27 N.E.3d 425;  People v. Young, 68 A.D.3d 1761, 891 N.Y.S.2d 577;  People v. Devorce, 293 A.D.2d 550, 742 N.Y.S.2d 63).  Since the stop of the vehicle was lawful, there was no basis to suppress evidence of the showup, the lineup identifications, or the defendant's statements on the ground that they were tainted by an illegal vehicle stop.

Furthermore, neither the showup nor the lineup procedures were unduly suggestive.  The showup procedure was not rendered unduly suggestive by the fact that the defendant was handcuffed and in the presence of plainclothes police officers, or that the police shined the lights of police vehicles on him (see People v. Bartlett, 137 A.D.3d 806, 27 N.Y.S.3d 163;  People v. Jerry, 126 A.D.3d 1001, 4 N.Y.S.3d 317).  The height and weight disparities between the participants in the lineup were diminished by the fact that they were seated behind a piece of cloth which hid their bodies from the neck down (see People v. Pinckney, 220 A.D.2d 539, 632 N.Y.S.2d 203;  People v. Jackson, 151 A.D.2d 694, 542 N.Y.S.2d 749).

The defendant's contention that he was deprived of a fair trial at his second trial because he was not present at sidebar conferences with prospective jurors is without merit.  Before the second trial, the defendant signed an Antommarchi waiver (see People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95).  He stated in open court that he understood that he was giving up the right to be present during sidebar conferences with prospective jurors, and that he was waiving that right knowingly and intelligently (see People v. Knight, 6 A.D.3d 460, 773 N.Y.S.2d 887;  People v. Bernhardt, 223 A.D.2d 595, 636 N.Y.S.2d 820).

The defendant's claim of ineffective assistance of counsel is based, in part, on matter outside of the record, and therefore is not reviewable on direct appeal, because it involves matters of strategy not reflected in, or fully explained by, the record (see People v. Perez, 162 A.D.3d 588, 75 N.Y.S.3d 911;  People v. Williams, 154 A.D.3d 497, 62 N.Y.S.3d 335).  Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 A.D.3d at 806, 940 N.Y.S.2d 314;  People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).

The Supreme Court did not violate the procedure set forth in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 in responding to notes from the jury at the second trial.  When evidentiary exhibits were requested during deliberations, the court marked those notes as court exhibits and read them into the record in the presence of both counsel.  The presence of the defendant was not required when the notes were read into the record (see id. at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189).  Further, at the beginning of deliberations, both the prosecutor and defense counsel advised the court that they had no objection to the court providing exhibits upon the jury's request without first assembling them.  Since the defendant consented beforehand to the jury receiving evidentiary exhibits in this manner, the court properly furnished the jury with the subject exhibits without reconvening (see CPL 310.20[1];  People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607;  People v. Headley, ––– A.D.3d ––––, 95 N.Y.S.3d 329 [2d Dept.];  cf. People v. Roberites, 115 A.D.3d 1291, 1292–1293, 983 N.Y.S.2d 377;  see generally William C. Donnino, Practice Commentary, McKinney's Cons Laws of N.Y., CPL 310.20).  The court's handling of the jury notes requesting evidentiary exhibits did not implicate either CPL 310.30 or the notice provisions outlined in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (see People v. Damiano, 87 N.Y.2d at 487, 640 N.Y.S.2d 451, 663 N.E.2d 607;  People v. Houston, 143 A.D.3d 737, 740, 38 N.Y.S.3d 259;  People v. Knudsen, 34 A.D.3d 496, 497, 823 N.Y.S.2d 530).

The sentences imposed were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).  Consecutive sentences were warranted in this case (see Penal Law § 70.25;  People v. Daly, 20 A.D.3d 542, 799 N.Y.S.2d 537;  People v. Rivera, 186 A.D.2d 594, 588 N.Y.S.2d 391).  The fact that the defendant received a harsher sentence after trial than he was offered during plea negotiations does not indicate that he was punished for exercising his right to a trial (see People v. Melendez–Torres, 165 A.D.3d 840, 85 N.Y.S.3d 130;  People v. Lang, 164 A.D.3d 832, 82 N.Y.S.3d 511;  People v. Valery, 135 A.D.3d 975, 24 N.Y.S.3d 362).  There is no indication in the record that the sentences were the result of vindictiveness or retribution for the defendant's refusal to accept a plea and his exercise of the right to a jury trial (see People v. Cruz, 137 A.D.3d 1158, 27 N.Y.S.3d 643;  People v. Valery, 135 A.D.3d 975, 24 N.Y.S.3d 362).

The defendant's remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.

BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

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