| People v Cruz |
| 2016 NY Slip Op 02105 [137 AD3d 1158] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eduardo Cruz, Appellant. |
Michael A. Fiechter, Bellmore, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and W. ThomasHughes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered October 2, 2013, convicting him of robbery in the first degree(nine counts), robbery in the second degree (five counts), burglary in the first degree(five counts), burglary in the second degree, criminal possession of a weapon in thefourth degree (two counts), unlawful imprisonment in the second degree (three counts),attempted unlawful imprisonment in the second degree, assault in the second degree (twocounts), resisting arrest, criminal possession of stolen property in the fifth degree, andescape in the third degree, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing pursuant to a stipulation in lieu of motions(Calabrese, J.), of the suppression of the defendant's statements to law enforcementofficials, identification testimony, and physical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied suppressionof statements he made after his arrest. The totality of the circumstances establishes thatthe statements were voluntarily made after the defendant knowingly and voluntarilywaived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966];People v Shears, 40 AD3d661, 662 [2007]; People v Morales, 228 AD2d 525 [1996]; People vCureton, 139 AD2d 756 [1988]).
The defendant's contention that there was no probable cause for his warrantless arrestbecause the People failed to satisfy the two-pronged Aguilar-Spinelli test (seeSpinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108[1964]) is unpreserved for appellate review, since the defendant failed to raise thisspecific argument in support of suppression before the hearing court (see CPL470.05 [2]; People vJackson, 105 AD3d 866, 868 [2013]). In any event, the People did not have tosatisfy the basis-of-knowledge prong of the Aguilar-Spinelli test. Instead, theywere required to meet the less demanding reasonable suspicion standard (see People v Argyris, 99 AD3d808, 810 [2012], affd 24 NY3d 1138 [2014]; People v Colucci, 268AD2d 531 [2000]). Here, the police had reasonable suspicion to stop the vehicle inwhich the defendant was a passenger on the basis of the information a police sergeantreceived from police radio transmissions (see People v Ceruti, 133 AD3d 610, 611 [2015]; People v Fields, 127 AD3d782, 783 [2015]; People v Argyris, 99 AD3d at 810; People v Fleming, 65 AD3d702, 703 [2009]). Reasonable suspicion then escalated to probable cause for arrestwhen, according to the police [*2]sergeant's hearingtestimony, the defendant "knock[ed]" the police sergeant off of him and fled the scene(see People v McDonald, 285 AD2d 615 [2001]; People v Elmore, 236AD2d 851, 852 [1997]; People v Troche, 185 AD2d 368 [1992]; People vBenbow, 170 AD2d 456 [1991]). Thus, the hearing court properly deniedsuppression of the defendant's statements, the identification testimony, and the physicalevidence.
Since there was probable cause to arrest the defendant, the defendant was properlycharged with escape in the third degree and resisting arrest (Penal Law§§ 205.05, 205.30).
The defendant's contention that the prosecution failed to establish his guilt ofburglary in the first degree, robbery in the second degree, and assault in the seconddegree beyond a reasonable doubt because the complainants did not sustain a "physicalinjury" within the meaning of Penal Law § 10.00 (9) is unpreserved forappellate review, as it was not raised with specificity in his motion for a trial order ofdismissal (see CPL 470.05 [2]; People v Saeed, 60 AD3d 975, 977 [2009]; People v Alston, 42 AD3d468, 469 [2007]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to support the jury's finding of physical injury (see People vSaeed, 60 AD3d at 977; People v Williams, 23 AD3d 589, 590 [2005]; People vRivera, 183 AD2d 792, 793 [1992]). Moreover, upon our independent reviewpursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt on the subject countswas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the People failed to present legally sufficientevidence that property was stolen with respect to his convictions of robbery in the firstdegree and robbery in the second degree under counts one, two, four, five, seven, eight,ten, and eleven of the indictment is unpreserved for appellate review (see CPL470.05 [2]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt of robbery in the first degree androbbery in the second degree beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilton the subject counts was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Based upon the record before us, the defendant received the effective assistance ofcounsel (see Strickland v Washington, 466 US 668 [1984]; People vBaldi, 54 NY2d 137, 146-147 [1981]).
The defendant's contention that the sentencing court penalized him for exercising hisright to a jury trial is unpreserved for appellate review since he did not set forth this issueon the record at the time of sentencing (see People v Hurley, 75 NY2d 887[1990]; People v Martinez,55 AD3d 753, 754 [2008]). In any event, the defendant's contention is without merit.The fact that the sentence imposed after trial was greater than that offered during pleanegotiations is not, standing alone, an indication that the defendant was punished forasserting his right to proceed to trial (see People v Valery, 135 AD3d 975 [2016]). There is noindication in the record that the sentence was the result of vindictiveness or retributionfor the defendant's refusal to accept a plea and his exercise of the right to a jury trial(see id.; People vGarcia, 46 AD3d 573 [2007]). Moreover, the sentence imposed was notexcessive (see People Suitte, 90 AD2d 80 [1982]). Finally, that two of thedefendant's codefendants received lesser sentences than the defendant does not render thedefendant's sentence excessive under the circumstances of this case (see People v Bryant, 82 AD3d1114 [2011]; People v Scott, 55 AD2d 963 [1977]).
The defendant's remaining contentions are without merit. Rivera, J.P., Balkin, Cohenand Barros, JJ., concur.