| People v McClain |
| 2016 NY Slip Op 08258 [145 AD3d 1192] |
| December 8, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJhaffre McClain, Appellant. |
Aaron A. Louridas, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered June 24, 2014, convicting defendant upon his plea of guilty of the crimes ofrobbery in the first degree (two counts) and robbery in the second degree.
On the evening of July 11, 2013, City of Albany Police Officer Anthony Scalise andhis partner responded to a radio dispatch of an armed robbery at a club in the City ofAlbany. The suspects were described as five or six black males wearing dark clothingand masks. Upon the officer's arrival, several victims informed them that the perpetratorshad just fled on foot through the parking lot of a nearby restaurant. After conducting aquick search of the surrounding area, Scalise and his partner returned to the scene of thecrime where they obtained additional information from the victims, including that one ofthe perpetrators had stolen a backpack and that another was wearing a baseball capbearing a Detroit Lions insignia. While speaking with the victims, Scalise received aradio transmission indicating that gunshots had been fired at a location a few blocksaway and that two males wearing dark clothing and carrying a backpack had beenobserved running through backyards. Scalise immediately responded to the location ofthe reported gunfire and, while canvassing alleyways and backyards for the fleeingsuspects, he was directed by a bystander to an alleyway. Upon entering the alley, Scaliseobserved a black Detroit Lions baseball cap similar to the one described by the victims ofthe armed robbery lying in the grass. He and another officer then continued down thealley to an adjacent yard where they came upon two males, one of whom was lateridentified as defendant. Both men had scratches on their arms, were "sweating profuselyand out of breath," and one of the men had blood on his shirt. The two were then orderedto the ground, handcuffed and held at the scene while Scalise returned to the location ofthe armed robbery to speak further with the victims. There, Scalise viewed surveillancevideo capturing the robbery and identified defendant, who was wearing a Detroit Lionsbaseball cap, as one of the armed robbers. Defendant and the other individual werethereafter arrested and transported to the police station, where one of the victims of therobbery identified defendant from a photo array as one of the assailants.
Defendant and four others were subsequently charged with two counts of robbery inthe first degree and one count of robbery in the second degree. Following a combinedDunaway/Wade/Mapp/Huntley hearing, County Courtdenied defendant's motion to suppress both the physical evidence recovered from hisperson and the pretrial identification of him. Defendant thereafter pleaded guilty ascharged and was sentenced to an aggregate prison term of 11
We reject defendant's contention that the evidence obtained by the police was theproduct of an illegal detention. "Street encounters initiated by police are governed by thewell-established graduated four-level test in which, generally stated, the level ofpermissible intrusion increases with the level of evidence of criminality. Theseencounters can be 'dynamic situations during which the degree of belief possessed at thepoint of inception may blossom by virtue of responses or other matters which authorize. . . additional action as the scenario unfolds' " (People v Tillery, 60 AD3d1203, 1204-1205 [2009] [citations omitted], lv denied 12 NY3d 860 [2009],quoting People v De Bour, 40 NY2d 210, 225 [1976]; accord People v Issac, 107AD3d 1055, 1057 [2013]). In evaluating the conduct of the police, "we accord greatweight to the credibility determinations made by the suppression court, given its peculiaradvantage of having seen and heard the witnesses" (People v Issac, 107 AD3d at1057; see People v Prochilo, 41 NY2d 759, 761 [1977]).
Here, moments after responding to the scene of the armed robbery, police received areport of shots fired in an area just blocks away, observed two men fleeing and weredirected by several bystanders to a location where defendant was discovered. "Where, ashere, police officers find themselves in a rapidly developing and dangerous situationpresenting an imminent threat to their well-being, they must be permitted to takereasonable measures" (People v Allen, 73 NY2d 378, 380 [1989] [citationomitted]; accord People vStroman, 107 AD3d 1023, 1024 [2013], lv denied 21 NY3d 1046[2013]). Given defendant's geographical and temporal proximity to both the scene of thearmed robbery and the area where shots were fired, the presence of the baseball capmatching the one reportedly worn by one of the perpetrators and defendant's physicalappearance upon being approached by the officers, we find that the police possessedreasonable suspicion that defendant had committed a crime and were thereforeauthorized to forcibly stop, frisk and detain him (see People v Ford, 110 AD3d 1368, 1371 [2013], lvdenied 24 NY3d 1043 [2014]; People v Robinson, 101 AD3d 1245, 1245-1246 [2012],lv denied 20 NY3d 1103 [2013]; People v Robinson, 95 AD3d 906, 906 [2012], lvdenied 19 NY3d 1000 [2012]). Once Scalise returned to the location of the robbery,viewed surveillance of the incident and determined that defendant was one of theassailants, probable cause existed for his arrest (see People v Stroman, 107 AD3dat 1024; People v Rose, 72AD3d 1341, 1345 [2010], lv dismissed 16 NY3d 745 [2011]).
Nor are we persuaded that defendant's identification as one of the assailants was theresult of an impermissibly suggestive police-arranged showup. Accidental showups thatresult from mere happenstance do not implicate due process concerns, so long as thespontaneous encounter was not caused by police misconduct or questionable policeprocedures (see People v Dixon, 85 NY2d 218, 223 [1995]; People vNewball, 76 NY2d 587, 591 [1990]). While being led up a flight of stairs at thepolice station, one of the victims of the robbery saw defendant, who was in civilianclothes and handcuffs, down a hallway approximately 30 feet away. Shortly thereafter,this witness identified defendant from a photo array as one of the armed robbers, andremarked, "He's the same guy I saw in the hallway as we came up the stairs." Upon ourreview of the record, we find no basis upon which to disturb County Court'sdetermination that the station house encounter between defendant and one of the victimswas accidental, spontaneous and not the product of police misconduct or questionablepolice procedures (see People vBrown, 123 AD3d 938, 939 [2014], lv denied 25 NY3d 949 [2015]; People v Rodriguez, 98 AD3d530, 531-532 [2012], lvs denied 19 NY3d 1105 [2012], 20 NY3d 935[2012]; People v Gomez, 60AD3d 782, 783 [2009], lv denied 12 NY3d 854 [2009]; People vNimmons, 177 AD2d 444, 445 [1991], lv denied 79 NY2d 922 [1992]).
Defendant's remaining contentions, raised in his supplemental pro se brief, areunpreserved for our review.
Garry, Egan Jr., Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.