| People v Dent |
| 2012 NY Slip Op 02776 [94 AD3d 536] |
| April 12, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Benjamin Dent, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J., at suppression hearing;Ruth Pickholz, J., at jury trial and sentencing), rendered June 1, 2010, convicting defendant ofcriminal possession of a controlled substance in the third and fifth degrees, and sentencing him,as a second felony drug offender whose prior felony conviction was a violent felony, to anaggregate term of six years, unanimously affirmed.
The hearing court properly denied defendant's motion to suppress the cocaine recovered fromhis person. The court found that defendant's resemblance to a person depicted in a wanted posterwas "uncanny," even though defendant turned out not to be that person. The record establishesthat the closeness of the resemblance outweighed other factors such as a height differencebetween defendant and the person in the wanted poster, and the lack of spatial or temporalproximity to the crime that formed the basis for the poster. Accordingly, the resemblance,coupled with defendant's immediate flight, warranted an inference that defendant was the personin the poster, and provided reasonable suspicion for a stop and frisk (see People v Collado, 72 AD3d614 [2010], lv denied 15 NY3d 850 [2010]; People v Wilson, 5 AD3d 408 [2004], lv denied 2 NY3d809 [2004]). Defendant's violent struggle with the police raised the level of suspicion to probablecause.
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal becauseit involves matters of strategy not reflected in the record (see People v Love, 57 NY2d998 [1982]). On the existing record, to the extent it permits review, we find that defendantreceived effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). Defendant has failed to demonstrate "the absence of strategic or other legitimateexplanations" (People v Rivera, 71 NY2d 705, 709 [1988]) for his counsel's failure torequest submission of seventh-degree possession as a lesser included offense of third-degreepossession. In any event, regardless of whether counsel should have made that request, defendanthas not established that this omission deprived him of a fair trial or affected the outcome of thecase.
Defendant's general objection failed to preserve his claim that the trial court erroneously[*2]admitted a statement that had been suppressed by the hearingcourt, and we decline to review it in the interest of justice (see People v Tevaha, 84NY2d 879 [1994]). As an alternate holding, we find that the error was harmless (see People vCrimmins, 36 NY2d 230 [1975]). Concur—Saxe, J.P., Sweeny, Moskowitz, Renwickand Abdus-Salaam, JJ.