| People v Murray |
| 2016 NY Slip Op 00714 [136 AD3d 714] |
| February 3, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Timothy Murray, Appellant. |
Lynn W. L. Fahey, New York, NY (Lauren E. Jones of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered February 28, 2013, convicting him of robbery in the first degree,robbery in the second degree (two counts), and criminal possession of stolen property inthe fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of those branches of the defendant's omnibus motionwhich were to controvert a search warrant and to suppress physical evidence seized in theexecution thereof, and to suppress identification testimony.
Ordered that the judgment is affirmed.
To the extent that the defendant contends that the warrant authorizing the search ofhis apartment was not supported by probable cause, his contention is without merit. Toestablish probable cause, a search warrant application must provide sufficientinformation "to support a reasonable belief that evidence of a crime may be found in acertain place" (People v McCulloch, 226 AD2d 848, 849 [1996]; see People vPaccione, 259 AD2d 563, 564 [1999]). Search warrants, which generally are notcomposed by lawyers but rather by police officers, should not be read hypertechnicallyand may be "accorded all reasonable inferences" (People v Hanlon, 36 NY2d549, 559 [1975]). Here, the suppression court correctly determined that the affidavitupon which the warrant was issued contained information sufficient to support areasonable belief that evidence of illegal activity would be present at the defendant'sapartment (see People vGriffin, 28 AD3d 578, 578 [2006]; People v Green, 10 AD3d 731, 732 [2004]; People vPaccione, 259 AD2d at 564).
To the extent that the defendant now makes additional arguments regarding a lack ofprobable cause to issue the search warrant, and further argues that the recovery of certainphysical evidence from his apartment exceeded the scope the warrant, the contentions areunpreserved for appellate review (see CPL 470.05 [2]) and, in any event, withoutmerit.
Contrary to the defendant's contention, the suppression court properly declined tosuppress the lineup identification evidence on the ground that it was unduly suggestive(see People v Marshall, 51AD3d 821 [2008]; People vDiggs, 19 AD3d 1098, 1099 [2005]; People v Briggs, 285 AD2d 514[2001]).
[*2] The defendant's contention that hewas deprived of the effective assistance of counsel during the pretrial proceedings iswithout merit (see generallyPeople v Caban, 5 NY3d 143, 156 [2005]; People v Baldi, 54 NY2d137, 147 [1981]).
Moreover, the defendant's contention that he was deprived of a fair trial as a result ofcertain remarks made during the People's summation is partially unpreserved forappellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]). In any event,most of the challenged summation remarks were either fair comment on the evidence(see People v Ashwal, 39 NY2d 105, 109-111 [1976]), or responsive toarguments and theories presented in the defense summation (see People vGalloway, 54 NY2d 396 [1981]; People v Joubert, 125 AD3d 686, 686 [2015]). To theextent that any remaining challenged remarks were improper, they were not so egregiousas to deprive the defendant of a fair trial (see People v Williams, 123 AD3d 1152 [2014], lvgranted 25 NY3d 1173 [2015]). Mastro, J.P., Austin, Maltese and Barros, JJ.,concur.