| People v Stroman |
| 2013 NY Slip Op 04045 [107 AD3d 1023] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMarcus A. Stroman, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered October 19, 2009, convicting defendant upon his plea of guilty ofthe crime of robbery in the first degree.
In satisfaction of a seven-count indictment, defendant pleaded guilty to the crime ofrobbery in the first degree, admitting that he forcibly stole property from the victimswhile displaying a loaded handgun. County Court sentenced him in accordance with theplea agreement to a prison term of six years followed by five years of postreleasesupervision. Defendant appeals.
Defendant contends that the initial stop and detention by the police constituted anarrest requiring probable cause. Defendant urges that, in the absence of any informationconnecting him to the armed robbery, the arrest was unlawful, thereby rendering theevidence seized from him at the police station inadmissible. We disagree.
Where a police officer reasonably suspects "that a particular person has committed, iscommitting or is about to commit a felony or misdemeanor, the CPL authorizes a forciblestop and detention of that person" (People v De Bour, 40 NY2d 210, 223 [1976];see CPL 140.50 [1]). " '[I]n justifying the particular intrusion the police officermust be able to point to specific and [*2]articulable factswhich, taken together with rational inferences from those facts, reasonably warrant thatintrusion' " (People v Williams, 305 AD2d 804, 806 [2003], quoting Terry vOhio, 392 US 1, 21 [1968]; see People v Carney, 58 NY2d 51, 53 [1982]). Ifthe intrusion involved is of sufficient magnitude, it can constitute an arrest, but not everyseizure where a police officer draws his or her gun and handcuffs an individualnecessarily elevates the stop to a full-blown arrest (see People v Allen, 73 NY2d378, 380 [1989]; People v Chestnut, 51 NY2d 14, 20-21 [1980], certdenied 449 US 1018 [1980]; People v Williams, 305 AD2d at 806;People v Bennett, 189 AD2d 924, 925 [1993]).
The evidence at the suppression hearing reveals that two police officers received aradio dispatch of an armed robbery in progress occurring a block away from theirlocation. Although no description of the suspect was provided by the dispatcher, theofficers, who arrived at the scene within seconds of the dispatch, observed defendant, theonly individual in the area, walking in the driveway alongside the residence. The officersdrew their guns and ordered defendant to stop and lay on the ground, at which pointdefendant was handcuffed, escorted to the patrol car and told that he was being detainedpending an investigation. "Where, as here, police officers find themselves in a rapidlydeveloping and dangerous situation presenting an imminent threat to their well-being,they must be permitted to take reasonable measures" (People v Allen, 73 NY2d at380 [citation omitted]; see People v Bennett, 189 AD2d at 925). Given theextremely short period of time between the report of the armed robbery and the arrival ofthe officers on the scene, defendant's presence alongside the residence and the absence ofany other individual in the vicinity, the officers were justified in forcibly detainingdefendant in order to quickly confirm or dispel their reasonable suspicion of defendant'spossible involvement in the armed robbery (see People v Hicks, 68 NY2d 234,240-241 [1986]; People v De Bour, 40 NY2d at 223; People v Tyrell, 82 AD3d1352, 1353-1354 [2011], lv denied 17 NY3d 810 [2011]). Furthermore,defendant was informed that he was being detained, was not questioned during thatperiod of time and was held at the crime scene in order to effectuate showups by thevictims of the robbery (see People v Hicks, 68 NY2d at 242-243; People vChestnut, 51 NY2d at 21). The victims gave a description of the assailant thatmatched defendant and identified defendant as the perpetrator, with the firstidentification occurring within 15 minutes of his detainment. Those identifications,together with a gun and other evidence found alongside the residence, provided probablecause for the officers to arrest defendant (see People v Tyrell, 82 AD3d at 1354;People v Tillman, 57 AD3d1021, 1023 [2008]). Accordingly, the evidence obtained from defendant at thepolice station was admissible against him (see People v Nesbitt, 56 AD3d 816, 819 [2008], lvdenied 11 NY3d 928 [2009]), as were the spontaneous statements he made duringhis transport to the police station (see People v Rabideau, 82 AD3d 1283, 1284 [2011], lvdenied 17 NY3d 799 [2011]; People v Starks, 37 AD3d 863, 865 [2007]).
Next, County Court did not err in denying defendant's motion to suppress theshowup identifications of him at the crime scene. A showup identification is permissibleprovided it is reasonable under the circumstances and not unduly suggestive (seePeople v Starks, 37 AD3d at 865). Here, the suppression record establishes that theshowup identifications were "conducted in close geographic and temporal proximity tothe crime"—approximately 15 to 25 minutes after the officers arrived at the crimescene—thereby satisfying the People's initial burden as to the reasonableness ofthe procedure (People v Brisco, 99 NY2d 596, 597 [2003]; see People v Harris, 64 AD3d883, 883-884 [2009], lv denied 13 NY3d 836 [2009]). Defendant wasimmediately identified by the victims and the circumstances surrounding the particularidentification did not render the procedure unduly suggestive (see People vHarris, 64 AD3d at 884; People v Armstrong, 11 AD3d 721, 722 [2004], lvdenied 4 NY3d 760 [2005]).[*3]
Defendant's contention that his plea was notknowingly, voluntarily or intelligently made is unpreserved for our review as there is noindication in this record that he moved to withdraw his plea or vacate the judgment ofconviction (see People vDoe, 95 AD3d 1449, 1449 [2012], lv denied 19 NY3d 995 [2012]), andhe made no statements during the plea allocution that would implicate the narrowexception to the preservation requirement (see People v DeJesus, 96 AD3d 1295, 1295 [2012]; People v Campbell, 89 AD3d1279, 1279 [2011]). The failure to make such a motion also renders unpreserved forour review his contention that he was denied the effective assistance of counsel (see People v Iadicicco, 100AD3d 1147, 1147 [2012]). To the extent that defendant's assertions of being deniedmeaningful representation pertain to matters outside the record, they are more properlythe subject of a CPL article 440 motion (see People v Aubrey, 73 AD3d 1393, 1394 [2010], lvdenied 16 NY3d 893 [2011]; People v Varmette, 70 AD3d 1167, 1172 [2010], lvdenied 14 NY3d 845 [2010]). Finally, by pleading guilty, defendant waived his prose challenge to the grand jury proceeding (see People v Johnson, 97 AD3d 990, 991 [2012]).
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.