| People v Stevens |
| 2007 NY Slip Op 06910 [43 AD3d 1088] |
| September 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gerald Stevens, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoleta J.Caferri, and Benjamin M. Mastaitis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered January 17, 2006, convicting him of burglary in the first degree,robbery in the first degree, burglary in the second degree, robbery in the second degree, criminalpossession of stolen property in the fourth degree (two counts), possession of burglar's tools,resisting arrest, and criminal mischief in the fourth degree, upon his plea of guilty, and imposingsentence. The appeal brings up for review the denial, after a hearing (Cooperman, J.), of thosebranches of the defendant's omnibus motion which were to suppress identification and physicalevidence.
Ordered that the judgment is affirmed.
On February 9, 2005 the defendant entered a private house in Queens County, without thepermission of the owners, by opening the door to the house with a screwdriver. The defendanttook DVDs, cash, and jewelry from the house. When confronted by one of the occupants of thehouse, the defendant pretended to have a gun in his hand, and told the occupant that if shemoved, he would "blow her head off." Soon after the commission of the crime, police officersreceived a radio transmission stating that an officer was in need of assistance, indicating adescription of the crime as a burglary, and stating that the suspect was a male black,approximately six feet tall, wearing a black jacket. Within 10 or 15 minutes after the officersinitially received the radio transmission, they observed the defendant, who fit that description,and they pursued him as he quickly ran from the crime scene. The officers apprehended anddetained the defendant. Within approximately one minute, three witnesses to the burglary,including the occupant who had confronted the defendant and two other occupants of the house,arrived in two separate police vehicles. The witnesses indicated to the officers that the defendantwas the person who had come [*2]into their house and taken theirproperty, and threatened them with what appeared to be a gun. After these showupidentifications, the defendant was placed under arrest.
After a Wade hearing (see United States v Wade, 388 US 218 [1967]) and aMapp hearing (see Mapp v Ohio, 367 US 643 [1961]), the Supreme Court deniedthose branches of the defendant's omnibus motion which were to suppress the property recoveredfrom him and to suppress the three showup identifications of the defendant by the witnesses.
The determination of the hearing court, which had the advantage of hearing and seeing thewitnesses first hand, is to be accorded great weight on appeal (see People v Prochilo, 41NY2d 759, 761 [1977]; People v Jade, 286 AD2d 688, 689 [2001]; People v Rosario,245 AD2d 470 [1997]). The hearing court was correct in finding that the officers, havingobserved that the defendant matched the description in the radio transmission of the person whohad committed the crimes, had reasonable suspicion to believe that the defendant was thatperson. Moreover, the showup identifications were sufficiently close in time and location to thecommission of the crimes that they were not unduly suggestive. Therefore, the hearing courtproperly denied those branches of the defendant's omnibus motion which were to suppress theproperty recovered from him, as well as the three showup identifications.
Since the defendant failed to move prior to the imposition of sentence to withdraw his plea orto vacate the judgment of conviction (see People v Pellegrino, 60 NY2d 636, 637 [1983];People v Deale, 29 AD3d 602,603 [2006]; People v Carden 27AD3d 573 [2006]), he failed to preserve for appellate review his claim that his plea was notvalid because the Supreme Court failed to conduct a further inquiry as to whether he was awareof and waived any possible defenses (see People v Clarke, 93 NY2d 904, 906 [1999]).Moreover, and contrary to the defendant's contention, the defendant's recitation of the factsduring his allocution did not negate an essential element of the crimes of robbery in the firstdegree and burglary in the first degree, or cast significant doubt on the defendant's guilt of theseoffenses. Hence, the defendant may not avail himself of any recognized exception to thepreservation rule (see People v Lopez, 71 NY2d 662, 666 [1988]).
The record indicates that the defendant knowingly, voluntarily, and intelligently entered hisplea of guilty (see People v Fiumefreddo, 82 NY2d 536, 543-547 [1993]; People v Sioleski, 21 AD3d 501,502 [2005]; People v Leo, 255 AD2d 458, 459 [1998]).
The defendant's remaining contention is unpreserved for appellate review and without meritin any event. Mastro, J.P., Covello, McCarthy and Dickerson, JJ., concur.