| People v Hewitt |
| 2011 NY Slip Op 02414 [82 AD3d 1119] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shakir Hewitt, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Cohen,J.), rendered February 19, 2008, convicting him of robbery in the first degree, robbery in thesecond degree (two counts), assault in the second degree (two counts), and criminal possession ofstolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing, of those branches of the defendant's omnibus motionwhich were to suppress identification testimony, his statement to law enforcement officials, andphysical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the police lacked probable cause to arrest him is withoutmerit. The evidence at the suppression hearing established that at the time they took thedefendant into custody, the police had probable cause to arrest the defendant based oninformation provided by identifiable citizens that he had committed a crime (see People vMaldonado, 86 NY2d 631, 635 [1995]; People v Cooper, 38 AD3d 678, 679 [2007];People v Cotton, 143 AD2d 680 [1988]).
The defendant's contention that the photo array from which the complainant selected hispicture was unduly suggestive is without merit. There were no characteristics of the defendant'spicture that made it stand out in any way from the others in the array, so as to draw a viewer'sattention to it and indicate that the police had "made a particular selection" (People vCurtis, 71 AD3d 1044, 1045 [2010]; see People v Ferguson, 55 AD3d 926 [2008];People v Wright, 297 AD2d 391 [2002]). Accordingly, the hearing court properly deniedthat branch of the defendant's omnibus motion which was to suppress identification testimony.
The defendant's contention that his statement to the police should have been suppressedbecause he never received Miranda warnings (see Miranda v Arizona, 384 US436 [1966]) is without merit. Detective Wilson's testimony at the suppression hearing that heread the defendant Miranda warnings, and that the defendant indicated that he understoodthose warnings and would speak to the police, was uncontroverted by the defendant. The hearingcourt found Wilson's testimony to be credible, and there is no basis to disturb that determination(see People v Stevens, 223 AD2d 609 [1996]). Accordingly, the hearing court properlydenied that branch of the defendant's omnibus motion which was to suppress his statement to lawenforcement officials.[*2]
The hearing court also properly denied that branch of thedefendant's omnibus motion which was to suppress physical evidence because the defendant hadno standing to challenge the search of the vehicle from which the evidence was recovered. Thehearing evidence established that the defendant was a mere passenger in the vehicle, with respectto which he demonstrated no legitimate expectation of privacy, and he does not allege that thevehicle was unlawfully stopped (see People v Robinson, 38 AD3d 572, 573 [2007];People v Ballard, 16 AD3d 697, 698 [2005]; People v Poree, 240 AD2d 597[1997]; People v Fredericks, 234 AD2d 472, 473 [1996]). Furthermore, the defendantwas not charged with the possession of a weapon or drugs under a statutory presumption (seePeople v Robinson, 38 AD3d 572 [2007]; People v Ballard, 16 AD3d at 698;People v Bell, 9 AD3d 492, 495 [2004]; People v Poree, 240 AD2d 597 [1997]).
To the extent that the defendant contends that the verdict was legally insufficient because thetestimony of the complainant was incredible as a matter of law, that contention is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]).In any event, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention in his pro se supplemental brief that he was deprived of theeffective assistance of counsel is without merit (see People v Benevento, 91 NY2d 708,711-713 [1998]). Covello, J.P., Dickerson, Eng and Sgroi, JJ., concur.