| People v Harvey |
| 2010 NY Slip Op 01253 [70 AD3d 1454] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Quinton T.Harvey, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedSeptember 20, 2007. The judgment convicted defendant, upon his plea of guilty, of robbery inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robberyin the first degree (Penal Law § 160.15 [4]), defendant contends that, by denying hisrequest to speak with his mother, the police in effect cut off the avenue by which he was mostlikely to obtain counsel and thus in effect denied defendant the right to counsel. Notably,defendant does not directly contend that he was denied the right to counsel, a contention that ofcourse does not require preservation (see People v Ramos, 99 NY2d 27, 30 [2002]).Were we to address the attenuated contention of defendant even in the absence of preservation(see People v Humphrey, 15 AD3d683, 685 [2005], lv denied 5 NY3d 763 [2005]; see also People v Glover,144 AD2d 581 [1988]), we would conclude that it is lacking in merit. "[I]t is impermissible forthe police to use a confession, even if it be otherwise voluntary, obtained from a 17-year-olddefendant when, in the course of extracting such confession, they have sealed off the most likelyavenue by which the assistance of counsel may reach him by means of deception and trickery"(People v Townsend, 33 NY2d 37, 41 [1973]; see also People v Bevilacqua, 45NY2d 508, 513 [1978]). Here, however, defendant failed to demonstrate that the policeprevented him from speaking with his mother by means of "official deception or trickery"(People v Salaam, 83 NY2d 51, 55 [1993]; see People v Martin, 39 AD3d 1213 [2007], lv denied 9NY3d 878 [2007]), and defendant thus is not entitled to the suppression of the statements that hemade to the police after asking to speak with his mother.
We reject the further contention of defendant that the police unlawfully detained and arrestedhim. It is well settled that a general description of an individual, without more, is insufficient toprovide reasonable suspicion that the individual has committed a crime to justify a forcibleseizure of that individual (see People v Stewart, 41 NY2d 65, 69 [1976]; People vThomas, 300 AD2d 416 [2002], lv denied 99 NY2d 620 [2003]). Here, however, therecord of the suppression hearing establishes that a police officer saw [*2]defendant, who matched the general description of the suspects,emerge next to a vacant property less than one block from the scene of the shooting, in the pathof the police K-9 unit that was tracking the suspects. The officer testified at the suppressionhearing that defendant fled from the area when he observed the officer. It is well settled that "adefendant's flight in response to an approach by the police, combined with other specificcircumstances indicating that the suspect may be engaged in criminal activity, may give rise toreasonable suspicion, the necessary predicate for police pursuit" (People v Sierra, 83NY2d 928, 929 [1994]; see People vMartinez, 59 AD3d 1071, 1072 [2009], lv denied 12 NY3d 856 [2009]). Theofficer thus was entitled to pursue and forcibly detain defendant in order to conduct aninvestigation into the shooting and robbery (see People v McCoy, 46 AD3d 1348, 1348-1349 [2007], lvdenied 10 NY3d 813 [2008]; People v Galloway, 40 AD3d 240 [2007], lv denied 9NY3d 844 [2007]; People vGatling, 38 AD3d 239 [2007], lv denied 9 NY3d 865 [2007]). Further, thepolice had the requisite probable cause to arrest defendant. The officer pursuing defendantobserved him move his hand to his waist area and also observed defendant place his hands overthe fence that he was attempting to scale. After detaining defendant, the officer also observed agun on the other side of that fence. Based on the totality of the circumstances, the reasonablesuspicion that justified the forcible seizure ripened into probable cause when the officer observedthe gun, thus warranting the arrest (seePeople v Cabrera, 11 AD3d 238 [2004], lv denied 3 NY3d 755 [2004];People v Strickland, 291 AD2d 420 [2002], lv denied 98 NY2d 656 [2002];People v Coon, 212 AD2d 1009 [1995], lv denied 85 NY2d 937 [1995]).
Defendant failed to preserve for our review his contention that he should have beenadjudicated a youthful offender inasmuch as he failed to request youthful offender status either atthe time of the plea proceedings or at sentencing (see People v Ficchi, 64 AD3d 1195 [2009]; People v Capps, 63 AD3d 1632[2009], lv denied 13 NY3d 795 [2009]; People v Fowler, 28 AD3d 1183 [2006], lv denied 7 NY3d788 [2006]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is notunduly harsh or severe. Present—Centra, J.P., Peradotto, Green and Pine, JJ.