| People v Whorley |
| 2015 NY Slip Op 01325 [125 AD3d 1484] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGerren Whorley, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Lindsey Luczka of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered September 16, 2011. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that Supreme Court erred in determining that the police had thenecessary reasonable suspicion to detain him and to frisk him for weapons because theinformation provided to them by the citizen informant was unreliable. The citizeninformant, a bouncer at an adjacent bar, had informed the police that he felt a gun ondefendant's person. Inasmuch as "that contention was not raised in defendant's pretrialomnibus motion or at the suppression hearing, it has not been preserved for our review"(People v King, 284 AD2d 941, 941 [2001], lv denied 96 NY2d 920[2001]; see People vTurner, 96 AD3d 1392, 1393 [2012], lv denied 19 NY3d 1002 [2012]).In any event, that contention lacks merit. The information provided by the bouncer, anidentified citizen, was based upon his personal knowledge and accused defendant ofcommitting a specific crime, and thus it provided the officers with at least a reasonablesuspicion that a crime had been, or was being, committed, thus authorizing the detention(see People v Brito, 59AD3d 1000, 1000 [2009], lv denied 12 NY3d 814 [2009]; see generallyPeople v De Bour, 40 NY2d 210, 223 [1976]; People v Cantor, 36 NY2d106, 112-113 [1975]). In addition, that information was coupled with the police officer'sconfirmatory observations of certain details of the information provided by the citizeninformant, which further provided at least reasonable suspicion to detain defendant(see generally People v Argyris, 24 NY3d 1138 [2014]; People vBell, 5 AD3d 858, 860 [2004]; People v Powell, 234 AD2d 397, 398[1996], lv denied 89 NY2d 988 [1997]). Inasmuch as the information provided tothe officers indicated that defendant possessed a gun, and "[a] corollary of the statutoryright to temporarily detain for questioning is the authority to frisk [an individual] if theofficer reasonably suspects that he is in danger of physical injury by virtue of thedetainee being armed" (De Bour, 40 NY2d at 223), the officers were authorizedto frisk defendant once they detained him.
To the extent that defendant contends that he was denied effective assistance ofcounsel because of advice he received from his attorney, that contention "is based oninformation outside the record before us and is therefore properly raised by a CPL article440 motion" (People v James, 269 AD2d 845, 846 [2000]). To the extent thatdefendant's ineffective assistance of counsel claim otherwise survives his plea of guilty(see People v Garner, 86AD3d 955, 956 [2011]), we conclude that it lacks merit (see generally People vFord, 86 NY2d 397, 404 [1995]). We note in particular that, although defendantcontends that he was denied effective assistance of counsel because defense counsel wasoperating under a conflict of interest, defendant has failed to demonstrate that anyalleged conflict of interest affected "the conduct of his defense . . . , or thatthe conflict operated on [defense counsel's] representation" of defendant (People v [*2]Konstantinides, 14 NY3d 1, 10 [2009]; see People v Ennis, 11 NY3d403, 410 [2008], cert denied 556 US 1240 [2009]).
Contrary to defendant's contention, the sentence is not unduly harsh or severe.Present—Smith, J.P., Carni, Lindley and Valentino, JJ.