| People v Diviesti |
| 2012 NY Slip Op 08356 [101 AD3d 1163] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Harry Diviesti,Appellant. |
—[*1] D. Holley Carnright, District Attorney (Joan Gudesblatt Lamb of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered November 5, 2010, upon a verdict convicting defendant of the crime of attemptedburglary in the second degree and criminal mischief in the third degree.
The occupant of an apartment heard banging on the front door followed by the sound ofbreaking glass and, upon investigating, found defendant standing at the open door. The occupantthen called 911 and provided a detailed description of defendant and the vehicle he drove awayin, including the license plate number. A deputy sheriff located defendant at his residence shortlythereafter and, when he was brought back to the apartment, defendant was identified by theoccupant. Later, defendant was also identified from a photo array as the perpetrator of an earlierburglary at a different apartment in the same vicinity. In connection with these two incidents,defendant was charged with the crimes of burglary in the second degree, attempted burglary inthe second degree and criminal mischief in the third degree. At trial, the victim of the earlierburglary was unable to identify defendant as the perpetrator, and that charge was dismissed.Defendant was then convicted of the remaining charges and sentenced to an aggregate prisonterm of seven years with three years of postrelease supervision. He now appeals.
Initially, we conclude that defendant's 4th Amendment rights were not violated. The deputywho found the matching license plate on a still-warm vehicle in the driveway of [*2]defendant's residence knocked on the door, did not receive anyresponse and, finding it unlocked, opened the door and took two or three steps inside. The deputysaw defendant standing at the top of the stairway inside the house, called to him and asked him tocome outside to speak with her. Once defendant voluntarily stepped outside the residence, thedeputy engaged him in conversation, determined his identity and, based on his answers to herquestions, the matching license plate and his matching physical appearance, she had reasonablesuspicion to detain him for a showup identification. Inasmuch as defendant was not arrested ortaken into custody inside his home, we agree with County Court that no Payton violationoccurred (see Payton v New York, 445 US 573, 576 [1980]; People v Locke, 25 AD3d 877,879 [2006], lv denied 6 NY3d 835 [2006]; People v Hines, 9 AD3d 507, 510 [2004], lv denied 3NY3d 707 [2004]; compare People vJones, 2 NY3d 235, 239 [2004]).[FN*]
Nor was the showup identification of defendant unreasonable or unduly suggestive.Defendant was found within 25 minutes in a rural area less than 10 miles from the scene of theattempted burglary and was identified roughly 45 minutes after the incident was reported. Thepolice officers took reasonable measures to ensure that defendant was not viewed in handcuffs orsurrounded by officers. As the showup identification was conducted in close geographic andtemporal proximity to the crime, and the procedure used was not unduly suggestive, we agreewith County Court that it was reasonable under the circumstances (see People v Brisco,99 NY2d 596, 597 [2003]; People vJudware, 75 AD3d 841, 843 [2010], lv denied 15 NY3d 853 [2010]; People v Mathis, 60 AD3d 1144,1145-1146 [2009], lv denied 12 NY3d 927 [2009]).
Defendant next contends that his counsel was ineffective for failing to move for a mistrialafter the burglary in the second degree count was dismissed because, he argues, the jury likelyinferred that he was a serial burglar after hearing all the evidence with respect to that charge. It isjust as plausible, however, that counsel believed the dismissal of the top count would cause thejury to question the evidence offered in support of the remaining charges (see People v Washington, 89 AD3d1140, 1142 [2011], lv denied 18 NY3d 963 [2012]; People v Clark, 115AD2d 860, 862 [1985], lv denied 67 NY2d 941 [1986]). Moreover, counsel tookappropriate steps to ameliorate any prejudice from the testimony by requesting and receiving acurative instruction that the evidence on the burglary charge was "not relevant," "must bedisregarded" and "should play no part, no role" in the jury's deliberations. As defendant has notdemonstrated the absence of a strategic choice, the failure to move for a mistrial does notconstitute ineffective assistance of counsel (see People v Rivera, 71 NY2d 705, 709[1988]; People v Cruz, 88 AD3d540, 540-541 [2011], lv denied 18 NY3d 882 [2012]; People v Nakovics,144 AD2d 704, 704 [1988], lv denied 73 NY2d 894 [1989]).
We have considered defendant's remaining arguments, including his contention that hissentence is harsh and excessive, and find them to be unavailing.
Peters, P.J., Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Although the prosecutor statedat the suppression hearing that a Payton violation occurred, we are not bound by theerroneous concession of a legal principle (see People v Dodson, 96 AD2d 1116, 1118 n[1983]).