| People v Heidt |
| 2012 NY Slip Op 04028 [95 AD3d 1234] |
| May 23, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Garrett Heidt, Appellant. |
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Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Steven A. Benderof counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered December 7, 2010, convicting him of robbery in the second degree,criminal possession of stolen property in the fifth degree, and resisting arrest, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly found that the police hadprobable cause to arrest him. The information supplied by an unidentified citizen informantduring a face-to-face encounter with a police officer in the immediate vicinity of the crime scene,the closeness of the encounter with the defendant, the defendant's flight, the informant'sstatement that the defendant was armed, and the police officers' own observations provided theofficers with probable cause to arrest the defendant (see People v Rosario, 24 AD3d 199 [2005]; People vMiles, 210 AD2d 353 [1994]; People v Brown, 127 AD2d 674 [1987]). Accordingly,the County Court properly denied that branch of the defendant's omnibus motion which was tosuppress physical evidence.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The County Court properly denied the defendant's request for a missing witness charge, asthe defendant failed to meet his burden of establishing that the witness in question wouldnormally be expected to give noncumulative testimony favorable to the People (see generallyPeople v Savinon, 100 NY2d 192, 196 [2003]; People v Gonzalez, 68 NY2d 424,427 [1986]; Buttice v Dyer, 1 AD3d 552, 552-553 [2003]). Indeed, the testimony of acodefendant who has pleaded guilty is "presumptively suspect," [*2]and a prosecutor would not normally be expected to call such awitness at trial (People v Rios, 184 AD2d 244, 245 [1992]; see CPL 60.22).
The defendant's contention that he was deprived of a fair trial by the prosecutor's summationcomments is unpreserved for appellate review (see People v Banks, 74 AD3d 1214, 1215 [2010]). In any event, theprosecutor's comments were not improper (see generally People v Galloway, 54 NY2d396, 399 [1981]; see also People v Ashwal, 39 NY2d 105 [1976]).
The defendant was not deprived of the effective assistance of counsel, as defense counselprovided meaningful representation (see People v Benevento, 91 NY2d 708 [1998];People v Baldi, 54 NY2d 137 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85[1982]).
The defendant's remaining contention, in Point V of his brief, is unpreserved for appellatereview, and, in any event, without merit. Dillon, J.P., Florio, Lott and Sgroi, JJ., concur.