| People v Hardman |
| 2016 NY Slip Op 00211 [135 AD3d 785] |
| January 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Hardman, Appellant. |
Craig S. Leeds, New York, NY, for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, LoriGlachman, and Joyce Adolfsen of counsel), for respondent.
Appeals by the defendant from three judgments of the Supreme Court, Kings County(Chun, J.), all rendered April 13, 2009, convicting him of criminal sale of a controlledsubstance in the third degree under Kings County indictment No. 3888/06, criminal saleof a firearm in the third degree under Kings County indictment No. 5543/06, andmanslaughter in the first degree under Kings County indictment No. 448/07, respectively,upon his pleas of guilty, and imposing sentences. The appeal from the judgmentconvicting the defendant of manslaughter in the first degree brings up for review thedenial, after a hearing, of those branches of the defendant's omnibus motion which wereto suppress statements made to law enforcement officials and identificationtestimony.
Ordered that the judgments are affirmed.
The defendant's challenge to the factual sufficiency of the plea allocution formanslaughter in the first degree is unpreserved for appellate review, as he failed to moveto withdraw the plea under CPL 220.60 (3) (see People v Lopez, 71 NY2d 662,664 [1988]). Contrary to the defendant's contention, the exception to the preservationrequirement does not apply here, because the defendant's plea allocution did not castsignificant doubt upon his guilt, negate an essential element of the crime, or call intoquestion the voluntariness of the plea (see People v Tyrell, 22 NY3d 359 [2013]; People vLopez, 71 NY2d at 666; People v Fontanet, 126 AD3d 723 [2015]). Rather, thedefendant's plea colloquy established his guilt on the theory that he acted in concert withhis accomplice to commit manslaughter in the first degree.
Also unpreserved for appellate review is the defendant's contention that the hearingcourt should have suppressed identification testimony based on the People's refusal toprovide the name of the confidential witness who identified the defendant from aphotographic array (see CPL 470.05 [2]). In any event, this contention is withoutmerit, as the testimony of the detective who caused the computer-generated array to becreated and who showed the array to the identifying [*2]witness was sufficient to establish the reasonableness of thepolice conduct and the lack of any undue suggestiveness in the pretrial identificationprocedure (see People v Chipp, 75 NY2d 327, 335 [1990]). The People havingthus satisfied their initial burden, the defense bore "the ultimate burden" of proving thatthe identification was improper (People v Delamota, 18 NY3d 107, 118 [2011]; seePeople v Chipp, 75 NY2d at 335), a burden the defendant failed to satisfy.Accordingly, that branch of the defendant's omnibus motion which was to suppressidentification testimony was properly denied.
The defendant further contends that the Supreme Court erred in denying that branchof his omnibus motion which was to suppress three statements he made to the police. Weagree with the defendant that the first statement to the police should have beensuppressed, on the ground that the People failed to show that the defendant was notsubjected to custodial constraint at that time (see People v Alls, 83 NY2d 94,102-103 [1993]), and the defendant was not advised of his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]). However, several hours later, afterhe was advised of, and waived his Miranda rights, the defendant made a similarvideotaped statement. More than two years later, while in police custody for a differentcrime, the defendant again waived his Miranda rights and made additionalstatements to the police. The defendant's later statements, including a videotapedstatement, were admissible against him, since there was a definite, pronounced breakgiving the defendant ample time for reflection, which was sufficient to remove any taintof his first statement (see Peoplev Paulman, 5 NY3d 122, 131 [2005]; People v Mattis, 45 AD3d 869, 870 [2007]; People v Vachet, 5 AD3d700, 702 [2004]; People v McIntyre, 138 AD2d 634, 637 [1988]).
Accordingly, those branches of the defendant's omnibus motion which were tosuppress the two later statements were properly denied. The defendant's first statement tothe police should have been suppressed, but it was cumulative of other evidence. Underthe circumstances, there is no "reasonable possibility that the error contributed to theplea" (People v Grant, 45 NY2d 366, 379 [1978]; see People v Lloyd, 66NY2d 964 [1985]). Therefore, the failure to suppress the first statement is not grounds tovacate the defendant's plea of guilty to manslaughter in the first degree (see People v Hardy, 77 AD3d133, 141-142 [2010]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel by trial counsel's failure to make certain objections or motions thathad "little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]).
The defendant's remaining contentions are without merit. Balkin, J.P., Hall, Cohenand Hinds-Radix, JJ., concur.