| People v Guevara-Carrero |
| 2012 NY Slip Op 00979 [92 AD3d 693] |
| February 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Santos Guevara-Carrero, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Donald Berk ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Peck, J.),rendered July 9, 2010, convicting him of manslaughter in the first degree and criminal possessionof a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing (Robbins, J.), pursuant to a stipulation in lieu of motions,of the suppression of the defendant's statement to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant contends that his statement to law enforcement officials should have beensuppressed as the fruit of an illegal arrest (see Wong Sun v United States, 371 US 471,488 [1963]). The evidence adduced at the pretrial suppression hearing did not establish that thedefendant had committed disorderly conduct, where it merely showed that, at the time of hisarrest, the defendant was standing with a group of men in front of a bodega at 12:30 a.m. Therewas no evidence presented that any other members of the public were present at the time of thedefendant's arrest after all of the members of the group except the defendant had dispersed inresponse to a police directive. Thus, the evidence did not establish the necessary element that thedefendant's conduct evinced "the intent to or recklessly created a risk of causing 'publicinconvenience, annoyance or alarm' " (People v Jones, 9 NY3d 259, 262 [2007], quoting Penal Law§ 240.20 [5]; see People v Delhall, 131 AD2d 870 [1987]). Nonetheless, despitethe defendant's contentions to the contrary, his arrest was neither a sham nor pretextual, since thearresting officer had already arrested the defendant for disorderly conduct by the time he learnedthat the defendant may have been involved with a homicide (see People v Nix, 78 AD3d 1698, 1699 [2010], cert denied565 US —, 132 S Ct 157 [2011]; People v Reynolds, 240 AD2d 517, 518 [1997];compare People v Malloy, 22 NY2d 559, 565 [1968]). Moreover, the complaint made byan identified passerby upon the defendant's arrest that the defendant had attempted to rob himgave the arresting officer probable cause to take the defendant into custody for the robbery charge(see Rivera v County of Nassau, 83AD3d 1032, 1033 [2011]).
In any event, any taint arising from an illegal arrest of the defendant for disorderly conductwould not have infected his subsequent videotaped confession to the homicide detectives. Anysuch taint would have been fully dissipated before the defendant made his confession, since thedefendant did not speak to any homicide detectives until approximately 3½ hours after hisarrest, and did not begin his videotaped confession until approximately 6½ hours after hisarrest (see People v [*2]Bradford, 15 NY3d 329, 333-334 [2010]; People vConyers, 68 NY2d 982, 983-984 [1986]; People v Maharaj, 308 AD2d 551, 552[2003]; People v Cooke, 299 AD2d 419, 420 [2002]).
Contrary to the defendant's contention on appeal, he was not deprived of the effectiveassistance of trial counsel due to counsel's failure to pursue a cogent defense theory. Defensecounsel chose to pursue only a defense of intoxication, and he was not ineffective for doing so, asa defense of justification was not supported by the record (see People v Rhodes, 281AD2d 225, 226 [2001]; People v Midgette, 242 AD2d 492, 492 [1997]). Nor was thedefendant otherwise deprived of the effective assistance of trial counsel (see Strickland vWashington, 466 US 668 [1984]; People v Stultz, 2 NY3d 277 [2004]).
The defendant's claim that the Supreme Court's charge with respect to manslaughter in thefirst degree was in error because it failed to relate his claim of intoxication to that charge's intentelement is unpreserved for appellate review (see CPL 470.05 [2]; People v Smith, 36 AD3d 633,633 [2007]; People v Masi, 154 AD2d 623, 623 [1989]). In any event, any error in thecourt's initial charge in this regard was cured by the court's more detailed charge that specificallyrelated intoxication to the intent element of manslaughter in the first degree in response to a notefrom the deliberating jury (see People v Hewitt, 258 AD2d 597, 598 [1999]).
The defendant's contention that he was deprived of a fair trial by certain summationcomments made by the prosecutor with respect to his claimed intoxication at the time of theoffense is unpreserved for appellate review (see CPL 470.05 [2]; People v Masaguilar, 86 AD3d619, 620 [2011], lv denied 17 NY3d 904 [2011]). In any event, the challengedremarks were either fair comment on the evidence adduced at trial or responsive to defensecounsel's summation (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Gross, 78 AD3d 1196,1197 [2010]; People v Masi, 154 AD2d 623, 623 [1989]). Angiolillo, J.P., Dickerson,Austin and Cohen, JJ., concur.