| People v Williams |
| 2015 NY Slip Op 03390 [127 AD3d 1114] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kermit Williams, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant, andappellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Weber, J.), rendered May 8, 2012, convicting him of burglary in the first degree, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of those branches of the defendant's omnibus motion which were to suppressidentification testimony, physical evidence, and his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
On September 5, 2010, at approximately 10:49 p.m., a police radio broadcastreported a burglary in progress at a house on North Oregon Road in West Babylon.Police officers responding to the address saw two perpetrators fleeing out of the backdoor of the house. Upon conducting a security sweep of the premises, one of the officersfound a loaded revolver on the steps leading to the basement. After securing the gun, hebroadcast over the radio that a gun had been recovered. Outside the house, the officersalso found the 13-year-old complainant, who, upon arriving home that night andattempting to enter via the back door, had come upon three burglars. The burglars forcedthe complainant, at gunpoint, to lead them around the house, room by room, looking formoney. The burglars left the complainant alone for a few moments and he ran outside.Eventually, he encountered the police and told them what happened.
The police officers were also advised over the radio that a black vehicle possiblyinvolved in the burglary was parked at the corner of Phoenix Road and North OregonRoad. Approximately two minutes after that radio broadcast, two other officers arrived atthat location. They observed codefendant Darrick Harrison sitting in a black Chrysler300, with its lights off. When asked what he was doing in that area, Harrison indicatedthat he was going to smoke marijuana while waiting for a friend. However, the officerquestioning Harrison did not smell marijuana. The officers directed Harrison to get out ofthe vehicle. When Harrison exited the vehicle, he placed a cell phone on the roof of thevehicle. The cell phone rang repeatedly, but Harrison did not answer the phone. One ofthe officers asked Harrison whether he was going to answer the phone, and Harrisonreplied that the phone was not his. The officer then answered the phone and a male, whosounded as though he was out of breath, asked to be picked up on Straight [*2]Path near the Southern State Parkway. That area was inclose proximity to the location of the burglary.
Another police officer was dispatched to the area of Straight Path near the SouthernState Parkway. Upon arriving at that location, the officer observed the defendant walkingsouthbound on Straight Path toward a parked vehicle. No one else was in the area. As theofficer drove past the defendant, he saw the defendant turn his head to follow the policevehicle. The officer turned his vehicle around and saw the defendant, who appeareddisheveled, get into the parked vehicle, which then drove away. After following thevehicle for several blocks, the officer stopped the vehicle.
Upon approaching the vehicle, the officer observed that the driver was calm andclean, while the defendant was sweaty and had a small amount of dirt on his shirt. Thedriver informed the officer that the defendant was an old friend who had called and askedto be picked up. The driver further advised the officer that he knew that something waswrong when the defendant called because the driver did not usually hear from thedefendant, and the defendant had sounded out of breath. The officer then directed thedefendant to get out of the vehicle.
The complainant was brought to the area for a showup identification. The defendantwas arrested after the complainant identified him as one of the burglars who had enteredthe house. At the precinct station house, while being questioned by the detective assignedto the case, the complainant disclosed, for the first time, that the burglars' faces had beencovered by masks during the entire incident.
The defendant correctly contends that the hearing court should have granted thatbranch of his omnibus motion which was to suppress the pretrial and in-courtidentification by the complainant. "The judicial toleration of promptly conductedat-the-scene showups rests on our objective that the police have reasonable assurancesthat they have arrested or detained the right person" (People v Duuvon, 77 NY2d541, 545 [1991]). Here, the hearing testimony demonstrated not only that theperpetrators' faces were covered during the entire time the complainant was with them,but also that the only description the complainant had previously provided to the policewas that the perpetrators were black males. Under these circumstances, it cannot be saidthat the complainant's pretrial and in-court identification of the defendant was notfounded on the fact that the defendant was the only person standing in the street, inhandcuffs, surrounded by the police with high-beam headlights shining on his face,during the showup proceeding (see People v Underwood, 239 AD2d 366 [1997];cf. People v Duuvon, 77 NY2d at 544-545). Nevertheless, the error in admittingthis identification evidence at trial was harmless since the other evidence of thedefendant's guilt, including oral and written statements he gave to the police admitting tohis participation in the burglary, was overwhelming, and there is no reasonablepossibility that the error might have contributed to his conviction (see People v Allen, 24 NY3d441, 450 [2014]; People vMartin, 24 AD3d 470 [2005]; People v Smith, 22 AD3d 510 [2005]).
Furthermore, the evidence at the suppression hearing established that, under thecircumstances, and "bearing in mind that '[p]robable cause does not require proofsufficient to warrant a conviction beyond a reasonable doubt' " (People vBlasich, 73 NY2d 673, 680 [1989], quoting People v Bigelow, 66 NY2d417, 423 [1985]), it was reasonable for the police to conclude that it was more probablethan not that the defendant was one of the perpetrators involved in the burglary (see People v Campbell, 120AD3d 827 [2014]; People vCapela, 97 AD3d 760, 761 [2012]). "It is axiomatic that an officer may onlyseize and take into custody an individual when the officer has probable cause to believethat the person has committed a crime" (People v Diaz, 131 AD2d 690, 694[1987]). "Probable cause to arrest requires the existence of facts and circumstanceswhich, when viewed as a whole, would lead a reasonable person possessing the sameexpertise as the arresting officer to conclude that an offense has been or is beingcommitted, and that the defendant committed or is committing that offense" (People v Wright, 8 AD3d304, 306 [2004]; see People v Bigelow, 66 NY2d at 423; People vBothwell, 261 AD2d 232, 234 [1999]). Here, the totality of the circumstancesdemonstrates that the police officers were alerted to the fact that a burglary was inprogress, arrived at the scene in time to observe the perpetrators fleeing from theresidence, and were provided with a description of the getaway car, the [*3]driver of which received a phone call while he was beingarrested from an out-of-breath individual asking to be picked up at a nearby location. Thepolice observed the defendant in close proximity to the designated location. Thedefendant was walking alone toward a vehicle while looking sweaty and disheveled andacting furtively. After observing the defendant enter the vehicle, the police followed thevehicle. They lawfully stopped the vehicle upon reasonable suspicion that the defendantwas involved in criminal activity. Thereafter, the driver's statements regarding thedefendant's unusual request to be picked up, and further observations of the defendant'sdisheveled appearance, gave the officers probable cause to arrest him. Accordingly,while the complainant's pretrial and in-court identification should have been suppressed,the hearing court properly declined to suppress the defendant's inculpatory statements tothe police and all evidence seized from him, as the police had probable cause to arrest thedefendant upon the totality of the circumstances. Thereafter, he was properly advised of,and voluntarily waived, his rights under Miranda v Arizona (384 US 436[1966]).
The defendant contends that certain trial testimony of the detective assigned to thecase and of one of the responding police officers was improperly admitted because thetestimony implicitly bolstered the erroneously admitted identification testimony of thecomplainant. This contention is unpreserved for appellate review. In any event, thedefendant's contention with respect to the police officer's testimony is without merit.However, with respect to the detective, the challenged testimony adduced during theprosecutor's direct examination of the detective, who drove the complainant to theshowup location, implicitly bolstered the identification testimony and was not"admissible for relevant, nonhearsay purposes" (People v Chatmon, 31 AD3d 781, 782 [2006]).Nevertheless, "the evidence of guilt was overwhelming and there was no significantprobability that the error[ ] contributed to the defendant's conviction[ ]" (People v Gopaul, 112 AD3d966, 967 [2013]; see People v Howard, 87 NY2d 940, 942 [1996];People v Crimmins, 36 NY2d 230, 241-242 [1975]).
The defendant contends that the evidence was legally insufficient to support hisconviction since all evidence gathered as a result of his allegedly improper detention andarrest should have been suppressed as fruit of the poisonous tree, and the remainingevidence presented at trial was legally insufficient to establish his guilt. This contentionis unpreserved for appellate review (see CPL 470.05 [2]; People v Gray,86 NY2d 10, 19 [1995]). In any event, this contention is without merit since only theidentification evidence should have been suppressed and the detective's testimonystricken, and, viewing the remaining evidence in the light most favorable to the People(see People v Cahill, 2NY3d 14, 57 [2003]; People v Bleakley, 69 NY2d 490, 495 [1987];People v Contes, 60 NY2d 620, 621 [1983]), it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d at 495). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the properly admittedevidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant failed to preserve for appellate review his contention that the sentenceimposed by the County Court improperly penalized him for exercising his right to a jurytrial since he did not set forth the issue on the record at the time of sentencing (seePeople v Hurley, 75 NY2d 887, 888 [1990]; People v Perez, 50 AD3d 1161, 1162 [2008]; People v Brown, 38 AD3d676, 677 [2007]). In any event, "the fact that the sentence imposed after trial wasgreater than the sentence offered during plea negotiations is not, standing alone, anindication that the defendant was punished for exercising his right to trial" (People v Ray, 100 AD3d933, 934 [2012]; see People v Pena, 50 NY2d 400, 412 [1980]; People v Jimenez, 84 AD3d1268, 1269 [2011]; Peoplev Norris, 34 AD3d 500, 501 [2006]). Moreover, in view of the serious nature ofthis offense and the defendant's prior criminal history, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]). Skelos, J.P., Austin, Sgroiand LaSalle, JJ., concur.