| People v Wellington |
| 2011 NY Slip Op 04081 [84 AD3d 984] |
| May 10, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EricWellington, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Katherine M. Weiss of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.),rendered January 9, 2009, convicting him of assault in the second degree and criminal possessionof a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing (Tomei, J.), of those branches of the defendant's omnibusmotion which were to suppress identification evidence and his statement to law enforcementofficials.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court committed reversible error in permittingthe jurors to take notes during a requested readback of a portion of the jury charge withoutproviding cautionary instructions is unpreserved for appellate review because the defendantneither objected to the note-taking nor requested that the court give a cautionary instruction(see CPL 470.05 [2]; People vHarris, 72 AD3d 1110, 1112 [2010]; People v Hudson, 54 AD3d 774, 775 [2008]; People vRamos, 306 AD2d 295 [2003]; People v Caraballo, 221 AD2d 553, 554 [1995];People v White, 210 AD2d 446, 446-447 [1994]; People v Stewart, 179 AD2d731, 733 [1992], affd 81 NY2d 877 [1993]; People v DiLuca, 85 AD2d 439, 446[1982]). Since there is no indication in the record that any of the jurors actually took notes, wedecline to reach the issue in the exercise of our interest of justice jurisdiction (see People vRamos, 306 AD2d 295 [2003]; People v Elias, 163 AD2d 230, 232 [1990]).
The defendant's contention that New York's persistent violent felony offender statute violatesthe Sixth Amendment right to trial by jury is without merit (see People v Bell, 15 NY3d 935, 936 [2010], cert denied563 US —, — S Ct —, 2011 WL 939017, 2011 US LEXIS 3487 [2011]; People v Bailey, 81 AD3d 741,742 [2011]; People v Ayuso, 80AD3d 708 [2011]).
The defendant's contention in his pro se supplemental brief, in effect, that the Supreme Courtshould have reopened the suppression hearing based on certain trial evidence, is unpreserved forappellate review, since he did not request this relief before the Supreme Court (see CPL470.05 [2]; People v Riley, 79AD3d 911, 912 [2010]; People vClanton, 69 AD3d 754 [2010]; People v Hossain, 298 AD2d 599, 600 [2002]).Having failed to move to reopen the hearing, the defendant may not rely upon trial evidence tochallenge the suppression ruling (see People v Riley, 79 AD3d at 912; People vFleming, 65 AD3d [*2]702, 703 [2009]; People v Rice, 39 AD3d 567, 568[2007]). Moreover, "the propriety of the denial of the defendant's suppression motion must bedetermined based upon the evidence before the suppression court" (People v Fleming, 65AD3d at 703-704; see People v Gonzalez, 55 NY2d 720, 722 [1981], cert denied456 US 1010 [1982]). Here, the Supreme Court properly denied that branch of the defendant'somnibus motion which was to suppress the showup identification, the lineup identification, andhis statement to police on the ground that the initial stop and detention were unlawful. "Where apolice officer has reasonable suspicion that a particular person was involved in a felony ormisdemeanor, the officer is authorized to forcibly stop and detain that person" (People vHollman, 79 NY2d 181, 185 [1992]; see People v Hicks, 68 NY2d 234, 242 [1986];People v Mais, 71 AD3d 1163,1164 [2010]; People v Hines, 46AD3d 912, 913 [2007]). The Supreme Court properly determined that the police hadreasonable suspicion to stop and detain the defendant for a showup identification based upon thedefendant's appearance, which matched the description of the perpetrator as broadcast over thepolice radio, and the police officers' observations of the defendant walking away from the sceneof the crime shortly after the shooting was reported to have occurred (see People v Hicks, 78 AD3d1075, 1075-1076 [2010]; People v Mais, 71 AD3d at 1164; People v Hines,46 AD3d at 913; People vQuinones, 45 AD3d 874 [2007], affd 12 NY3d 116 [2009]; People v Green, 10 AD3d 664[2004]). Furthermore, based on the report that shots had been fired at the scene, "the police had areasonable basis for believing defendant to be armed, and they were justified in approaching himwith their guns drawn" (People v Brown, 127 AD2d 674, 674 [1987]; see People vChestnut, 51 NY2d 14, 21 [1980], cert denied 449 US 1018 [1980]; People vSledge, 225 AD2d 711 [1996]).
The defendant's contention in his pro se supplemental brief that he was deprived of theeffective assistance of counsel is based on matter dehors the record and may not be reviewed ondirect appeal (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Redmon, 81 AD3d 752,753 [2011]; People v Johnson, 59AD3d 738 [2009]). Dillon, J.P., Florio, Balkin and Eng, JJ., concur.