| People v Brewer |
| 2017 NY Slip Op 08411 [155 AD3d 1447] |
| November 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Reece Z. Brewer, Appellant. |
Michelle E. Stone, Vestal, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered September 28, 2015, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the third degree.
A taxi driver was assaulted and robbed by three passengers, who then ran into a residence inthe City of Elmira, Chemung County. Police officers arriving at the scene heard voices andknocked on the door. Defendant answered and was detained after he shouted a warning to thoseinside. Another man and a woman tried to leave the residence through a back door and were alsodetained by police officers. The victim identified defendant in a showup procedure as one of thepeople who had attacked and robbed him. Later that day, police searched the residencetwice—first by consent and later pursuant to a warrant—and recovered itemsrelated to the robbery and an electronic stun gun. Defendant pleaded guilty to attempted criminalpossession of a weapon in the third degree in satisfaction of multiple charges and was sentencedas a second felony offender to a prison term of 1
County Court did not err in denying defendant's motion to suppress the identificationevidence. "A showup identification is permissible so long as it was reasonable under thecircumstances—that is, when conducted in close geographic and temporal proximity to thecrime—and the procedure used was not unduly suggestive" (People v Vaughn, 135 AD3d 1158,1159 [2016] [internal quotation marks and citations omitted], lv denied 27 NY3d 1076[2016]; see [*2]People v Ortiz, 90 NY2d 533, 537[1997]). A Wade hearing was conducted, and the testimony established that the victimidentified defendant just over an hour after the police were summoned. The officers placed thethree suspects in separate patrol cars and removed them one at a time to be viewed as the victimwas driven past each suspect standing on the street. The patrol car in which the victim was seatedtraveled around the block between viewings, so that the victim would not see the suspects asofficers transferred them between the patrol cars and the street. Defendant was the secondsuspect to be viewed. This showup procedure was reasonable, as it was conducted at the scene ofthe crime and "as soon as practicable following defendant's apprehension" (People v August, 33 AD3d 1046,1048 [2006], lv denied 8 NY3d 878 [2007]; see People v Mattis, 46 AD3d 929, 930-931 [2007]; People vBoyd, 272 AD2d 898, 899 [2000], lv denied 95 NY2d 850 [2000]). Police saidnothing unduly suggestive to the victim before the identification, and the fact that defendant washandcuffed and standing near an officer and several police cars did not render the procedure "sounnecessarily suggestive as to create a substantial likelihood of misidentification" (People v Armstrong, 11 AD3d721, 722 [2004] [internal quotation marks and citations omitted], lv denied 4 NY3d760 [2005]; see People vFranqueira, 143 AD3d 1164, 1166 [2016]; People v Bellamy, 118 AD3d 1113, 1116 [2014], lv denied25 NY3d 1159 [2015]).
Defendant failed to preserve his contention that he was illegally detained by raising it in hisomnibus motion or at the suppression hearing (see People v Wedekind, 200 AD2d 891,892 [1994], lv denied 83 NY2d 1008 [1994]; see generally People v Durham, 146 AD3d 1070, 1072 [2017],lv denied 29 NY3d 997 [2017]). Upon review, we do not find that his counsel's failure topreserve this issue by requesting a Dunaway hearing deprived defendant of meaningfulrepresentation. Defendant matched a general description provided by the victim, and answeredthe door of the residence into which the three suspects had fled shortly before the police arrived.He stepped out onto a front porch and, upon seeing the police, immediately tried to retreatindoors while shouting a warning to others that police were present. On this evidence, police hadreason to suspect that defendant had been involved in the alleged robbery and assault. Given therapidly developing situation, his detention in a patrol car until he could be viewed by the victimwas justified "to quickly confirm or dispel [this] reasonable suspicion" (People v Stroman, 107 AD3d1023, 1024 [2013], lv denied 21 NY3d 1046 [2013]; see People vFranqueira, 143 AD3d at 1165). There is thus little or no possibility that a challenge to thelegality of defendant's detention would have resulted in suppression of the identificationevidence, and the failure to make an argument with little or no chance of success does notconstitute ineffective assistance of counsel (see People v Caban, 5 NY3d 143, 152 [2005]; People v Criss, 151 AD3d 1275,1280 [2017], lv denied 30 NY3d 979 [2017]).
For similar reasons, we reject defendant's claim that his counsel was ineffective for failing tochallenge the legality of the search warrant that led to the discovery of the stun gun.[FN*] Just after defendant wasapprehended, police obtained consent to search the residence from its tenant, who told police thatdefendant had a bedroom there. During this search, officers found a handgun holster and a liveround of .22 caliber ammunition in the same bedroom as a taxi receipt bearing the number of thetaxi driven by the victim. The warrant application set forth these facts [*3]and alleged that there was reasonable cause to believe thatunlawfully possessed property, in addition to items related to the robbery, would be found in theresidence. The resulting warrant authorized police to search the residence for items related to theattack on the taxi driver and also for deadly weapons, dangerous instruments and firearms. Apresumption of validity attaches to a judicially approved search warrant (see People vCastillo, 80 NY2d 578, 585 [1992], cert denied 507 US 1033 [1993]; People v Cherry, 149 AD3d 1346,1347-1348 [2017], lv denied 29 NY3d 1124 [2017]), and this warrant applicationprovided "sufficient information to support a reasonable belief that evidence of a crime [would]be found in [the residence]" (People vPasco, 134 AD3d 1257, 1258 [2015]; see People v Bigelow, 66 NY2d 417, 423[1985]). Thus, a challenge to the warrant by defense counsel would have had little or no chanceof success (see People v Caban, 5 NY3d at 152).
Finally, defendant's challenge to the voluntariness of his plea—which is premisedentirely upon his unsuccessful claims of ineffective assistance of counsel—is unpreserved,as he did not make an appropriate postallocution motion and said nothing during the pleacolloquy that would bring the case within the narrow exception to the preservation requirement(see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Empey, 144 AD3d 1201, 1203 [2016], lv denied28 NY3d 1144 [2017]; People vSkidds, 123 AD3d 1342, 1342-1343 [2014], lv denied 25 NY3d 992[2015]).
Peters, P.J., Devine, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The record reveals that, atdefendant's request, defense counsel obtained an adjournment to file a motion challenging thesearch warrant. However, after further review, counsel advised defendant that he did not intendto file the motion because he had concluded that it would not succeed.