| People v Martinez |
| 2009 NY Slip Op 00916 [59 AD3d 1071] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LuisMartinez, Appellant. |
—[*1] Luis Martinez, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered December 23, 2003. The judgment convicted defendant, upon a jury verdict, of robberyin the first degree (two counts) and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of twocounts of robbery in the first degree (Penal Law § 160.15 [2], [4]) and one count ofcriminal possession of a weapon in the third degree (§ 265.02 [former (3)]), defendantcontends that he was denied his right to be present at a pretrial scheduling conference. We rejectthat contention. That conference did not involve "factual matters about which defendant mighthave peculiar knowledge that would be useful in advancing the defendant's or countering thePeople's position" (People v Spotford, 85 NY2d 593, 596 [1995]), and the contention ofdefendant that his presence would have affected the outcome of the trial is merely speculative(see People v Roman, 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920[1996]).
We also reject the contention of defendant that the police lacked probable cause to arresthim. The record of the suppression hearing establishes that a police officer observed defendantemerge from the area immediately behind the store that had just been robbed, and that defendantmatched the description of one of the suspects. The officer testified that defendant fled from thearea when he saw the officer. It is well settled that "a defendant's flight in response to anapproach by the police, combined with other specific circumstances indicating that the suspectmay be engaged in criminal activity, may give rise to reasonable suspicion, the necessarypredicate for police pursuit" (People v Sierra, 83 NY2d 928, 929 [1994]; see People v Davis, 48 AD3d1120, 1121-1122 [2008], lv denied 10 NY3d 957 [2008]; People v Nesmith,289 AD2d 1049 [2001], lv denied 97 NY2d 758 [2002]). The officer thus was entitled topursue defendant (see People vMartinez, 39 AD3d 1159, 1160 [2007], lv denied 9 NY3d 867 [2007]), and hehad probable cause to arrest defendant based on defendant's spontaneous statement that thepolice did not need to look for the guns used in the robbery because "they were plastic, [and] webroke them up" (see generally People v Bigelow, 66 NY2d 417, 423 [1985]). Contrary todefendant's further contention, the sentence is not unduly harsh or severe.
We reject the contention of defendant in his main and pro se supplemental briefs that he wasdenied effective assistance of counsel. To the extent that defendant contends that defense counselwas ineffective for failing to move to suppress certain evidence, defendant "failed to show that apretrial motion to suppress [that] evidence, if made, would have been successful" (People v Matthews, 27 AD3d1115, 1116 [2006]). To the extent that defendant contends that defense counsel wasineffective for failing to conduct proper cross-examinations of witnesses, to question potentialjurors in a sufficient manner and to request a specific jury instruction, defendant failed " 'todemonstrate the absence of strategic or other legitimate explanations' for [those] allegedshortcomings" (People v Benevento, 91 NY2d 708, 712 [1998], quoting People vRivera, 71 NY2d 705, 709 [1988]) and, absent such a showing, it is presumed that defensecounsel acted competently (see People v Wells, 187 AD2d 745 [1992], lv denied81 NY2d 894 [1993]; see generally People v Flores, 84 NY2d 184, 187 [1994]).
The remaining contentions of defendant in his main and pro se supplemental briefs are notpreserved for our review (see CPL 470.05 [2]), and we decline to exercise our power toreview those contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Present—Hurlbutt, J.P., Centra, Fahey and Peradotto, JJ.