| People v Williams |
| 2020 NY Slip Op 03569 [184 AD3d 1010] |
| June 25, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Curtis Williams, Appellant. |
Dennis J. Lamb, Troy, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 24, 2017, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
Following the armed robbery of a car wash in January 2016, City of Albany policeinvestigators publicized surveillance video footage and a frame captured from it that depicted asuspect. The suspect was identified by several tipsters, including the parole officer who hadsupervised him, as defendant. Defendant remained at large in April 2016, when a woman washospitalized with injuries sustained as the result of her friend's boyfriend entering her apartmentand striking her in the head with a heavy object. The victim only knew the assailant's nickname;another woman, however, contacted investigators to name defendant as the perpetrator and addthat he often carried a handgun and wore a distinctive Tweety Bird jacket. An investigatingdetective prepared a photo array to show to the victim but, as he was about to do so, heard a radiocall dispatching officers to check out an annoyance caused by defendant at the victim's housingcomplex. The detective telephoned a responding officer to advise that defendant was suspectedof assault, possibly armed and wearing a Tweety Bird jacket. Another patrol officer wasdispatched to the area with information that an armed man of defendant's description was outsidewearing a cartoon jacket. Defendant was spotted by officers in front of the housing complex asthey arrived. He fled, was then apprehended and found to be unarmed.
Around the time that defendant was apprehended, the victim of the assault identified himfrom the photo array. Defendant was taken into custody and interviewed twice by investigators,terminating the first interview about the assault and handgun by invoking his right to remainsilent and then speaking to another investigator about the car wash robbery several hours later.Investigators obtained a search warrant for the address where defendant was living and foundvarious items of interest, then searched the route of defendant's attempted escape and recovered ahandgun that defendant's girlfriend said appeared to be his.
Defendant was charged in an indictment with various offenses. County Court denied hismotion to suppress physical evidence, identification evidence and his statements to police, aswell as his motion for reargument. Defendant then pleaded guilty to attempted criminalpossession of a weapon in the second degree in satisfaction of the indictment and waived hisright to appeal, except for issues relating to the denial of his suppression motion. County Courtdenied defendant's pro se motion to withdraw his plea, adjudicated him to be a persistent violentfelony offender and sentenced him, as agreed, to a term of 12 years to life in prison. Defendantappeals, primarily arguing that County Court erred in denying his motion to suppress.
According deference to County Court's assessment that the suppression hearing testimonyand evidence submitted by the People were in all respects credible (see People v Elder, 173 AD3d1344, 1345 [2019], lv denied 34 NY3d 930 [2019]; People v Vandebogart, 158 AD3d976, 978 [2018], lv denied 31 NY3d 1089 [2018]), we agree with the court thatdefendant's pursuit, detention and arrest were proper. The record reflects that one of the officerswho responded to the call involving defendant knew that he was suspected of an assault, whilemore than one knew that he was potentially armed.[FN1] Accordingly, when the officers arrived on thescene and saw defendant wearing his trademark Tweety Bird jacket, they at least had "a foundedsuspicion that criminal activity was afoot and [were] entitled to interfere with defendant to theextent necessary to gain explanatory information" (People v Lewis, 277 AD2d 603, 605[2000], lv denied 95 NY2d 966 [2000]; see People v De Bour, 40 NY2d 210, 223[1976]). Defendant fled as soon as he spotted the officers and, in tandem with the officers'existing knowledge, that development afforded "reasonable suspicion to believe a crime had beencommitted such that defendant's pursuit and detention were justified" (People v Belle, 74 AD3d 1477,1479 [2010], lv denied 15 NY3d 918 [2010]; see People v Woods, 98 NY2d 627,628-629 [2002]; People v Morris,105 AD3d 1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]). Probable cause toplace defendant under arrest existed no later than around the time the chase concluded, when theofficers were advised that the victim of the assault had identified defendant as her assailant andwere further directed to bring him in for questioning (see People v Matthews, 159 AD3d 1111, 1113 [2018]; People v Green, 127 AD3d 1473,1474 [2015], lv denied 27 NY3d 965 [2016]).[FN2] The actions of police in the leadup todefendant's arrest were therefore proper and, as a result, defendant lacked standing to seeksuppression of the handgun abandoned along the route of the chase (see People vMartinez, 80 NY2d 444, 449 [1992]; People v Ross, 106 AD3d 1194, 1196-1197 [2013], lvdenied 22 NY3d 1090 [2014]).
Turning next to the identification of defendant as the suspect in the car wash robbery, adetective testified that the video clip and still frame of the robbery released to the media wereportions of a surveillance video that he viewed immediately after the robbery on the car wash'soperable video equipment, and he further explained how the excerpts were selected from a copyof that video downloaded by another officer who checked its accuracy. In our view, thistestimony was adequate to establish the "authenticity and integrity" of the video excerpt and stillframe, and County Court did not abuse its "founded discretion" by admitting those items intoevidence (People v Patterson, 93 NY2d 80, 84 [1999]; see People v Grant, 170 AD3d888, 890 [2019], lv denied 33 NY3d 1031 [2019]; People v Costello, 128 AD3d 848,848 [2015], lv denied 26 NY3d 927 [2015]).
Defendant further notes that County Court failed to explicitly address the significance of hisinvocation of his right to remain silent at the end of his first police interview. However, asCounty Court made otherwise thorough written findings of fact and conclusions of law and theissue was fully explored at the suppression hearing, we perceive no reason to remit and will makeour own determination on that point from the record before us (compare People v Pouliot, 64 AD3d1043, 1044 [2009], lv denied 13 NY3d 838 [2009], with People v Youngs, 169 AD3d1155, 1156 [2019]). The video recording of the first interview shows that defendant wasMirandized, that he agreed to speak with detectives, that the questioning involved the assault andhis alleged weapon possession and that it ended when defendant stated that he was "donetalking." A second recording shows defendant and a different detective enter the interview roomseveral hours later. The detective stated that he knew that defendant had spoken to otherdetectives earlier and that, although defendant did not have to talk to him, he was hoping to talkabout a different subject.[FN3] Defendant was agreeable, the detectiveMirandized him again and proceeded to ask questions about the car wash robbery and thesurveillance video, which defendant answered without complaint. As a result, although defendantmade "an unconditional and unequivocal invocation of his right to remain silent" to end the firstinterview, he waived that right following the administration of Miranda warnings at theoutset of the second interview, and the ensuing questioning was proper (People v Logan, 19 AD3d 939,941 [2005], lv denied 5 NY3d 830 [2005]; see People v Gary, 31 NY2d 68, 69-70[1972]; People v Masi, 151 AD3d1389, 1390 [2017], lv denied 30 NY3d 1062 [2017]). Thus, we perceive no reason tosuppress the statements made by defendant during the second interview.
Defendant's remaining contentions, advanced in defense counsel's brief and in defendant'spro se supplemental brief, do not require extended discussion. A presumption of validity attachesto a judicially approved search warrant and, upon review of the search warrant application here,we are satisfied that the information therein supported a reasonable belief that evidence ofillegality could be found at defendant's residence (see People v Williams, 140 AD3d 1526, 1526-1527 [2016], lvdenied 28 NY3d 1076 [2016]; seee.g. People v Brewer, 155 AD3d 1447, 1449 [2017]). Defendant's claim of prosecutorialmisconduct relating to the failure to produce the recording of a 911 call is precluded by his validappeal waiver (see People vJackson, 128 AD3d 1279, 1280 [2015], lv denied 26 NY3d 930 [2015]). In anyevent, it is meritless in light of the parties' stipulation that the recording had not been preserveddespite timely demand by both defendant and the People. His ineffective assistance claiminvolves matters outside the record and is better explored in a CPL article 440 motion (see People v Griffin, 134 AD3d1228, 1230 [2015], lv denied 27 NY3d 1132 [2016]). Finally, notwithstanding hisunsuccessful pro se motion to withdraw his guilty plea, defendant's challenge to the factualsufficiency of the plea allocution is precluded by his appeal waiver (see People v Thompson-Goggins, 182AD3d 916, 918 [2020]; People v Jackson, 128 AD3d at 1279).
Garry, P.J., Egan Jr., Mulvey and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Inasmuch as the individual whoidentified defendant as having assaulted the victim and warned that he was armed "was not aconfidential informant but a known member of the community," defendant's effort to invoke theAguilar-Spinelli test to assess her reliability is misplaced (People v Matthews, 159 AD3d1111, 1113 [2018]).
Footnote 2:After examining the photo arrayand the testimony relating to its administration, we agree with County Court that, to the extentthat the victim's identification of defendant was not confirmatory, the identification proceduresused were not unduly suggestive (seePeople v Smith, 157 AD3d 978, 978-979 [2018], lv denied 31 NY3d 1087[2018]; People v Hunter, 273 AD2d 500, 502 [2000], lv denied 95 NY2d 935[2000]).
Footnote 3:The detective who conducted thesecond interview testified that, at the time, he knew that an earlier interview had occurred but didnot know how it had ended.