| People v Hines |
| 2007 NY Slip Op 10550 [46 AD3d 912] |
| December 26, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlexHines, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGuire,J.), rendered May 25, 2005, convicting him of attempted grand larceny in the third degree,possession of burglar's tools, and criminal mischief in the fourth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), ofthose branches of the defendant's omnibus motion which were to suppress physical evidence andidentification testimony.
Ordered that the judgment is affirmed.
Less than 15 minutes after the police received a radio broadcast and then spoke to aneyewitness at the scene of a crime, they found the defendant within two blocks, wearing thespecific clothing described in the broadcast and by the eyewitness. The police had reasonablesuspicion to pursue, stop, and detain the defendant based upon the general description of theperpetrator which matched the description of the defendant, the close proximity of the defendantto the site of the crime, and the short passage of time between the commission of the crime andthe observation of the defendant (seePeople v Bennett, 37 AD3d 483, 484 [2007]; People v Gil, 21 AD3d 1120, 1121 [2005]; People v Green, 10 AD3d 664[2004]; People v Holland, 4 AD3d375, 376 [2004]). Accordingly, the Supreme Court properly denied those branches of thedefendant's omnibus motion which were to suppress physical evidence and identificationtestimony.
The defendant's contention that the evidence was legally insufficient to prove his guilt [*2]of attempted grand larceny in the third degree is not preserved forappellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). Inany event, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt.
Furthermore, the concession of guilt on the misdemeanor charge of criminal mischief in thefourth degree by defense counsel was not an indication of incompetence. "[S]uch defense tactics,whereby counsel admits guilt on a lesser charge in the hope that the jury would then be morereceptive to the claim that the defendant was innocent of the far more serious offense and acquithim thereof, is a perfectly acceptable strategy which should not be 'second guess[ed]' by thecourts" (People v Allen, 285 AD2d 470, 471 [2001], quoting People v Plaza, 133AD2d 857, 858 [1987]; see People v Morris, 100 AD2d 630, 631 [1984], affd 64NY2d 803 [1985]). Schmidt, J.P., Rivera, Florio and Balkin, JJ., concur.