| People v Cisse |
| 2017 NY Slip Op 02724 [149 AD3d 435] |
| April 6, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ali Cisse, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), forrespondent.
Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O. at suppressionhearing; Richard D. Carruthers, J. at suppression ruling; A. Kirke Bartley, Jr., J. at jury trial andsentencing), rendered June 9, 2014, convicting defendant of robbery in the first degree (twocounts), robbery in the second degree, attempted robbery in the first degree (two counts),attempted robbery in the second degree, criminal possession of a weapon in the second degree(two counts), reckless endangerment in the first degree, and criminal possession of a weapon inthe third degree, and sentencing him to an aggregate term of 12 years, unanimouslyaffirmed.
Defendant's motion to suppress physical evidence was properly denied. Defendant's principalargument is that his initial encounter with the police, from which his arrest ultimately flowed,was at least a level two common-law inquiry unsupported by the necessary predicate. However,the record establishes that the police officer only conducted a level one request for informationby telling defendant to "hold up for a second" or "hold on for a second," and to "turn around" toface the officer, while standing about 10 or 15 feet away from him (see People v Reyes,83 NY2d 945 [1994], cert denied 513 US 991 [1994]; People v Montero, 284AD2d 159, 160 [1st Dept 2001], lv denied 96 NY2d 904 [2001]). This request forinformation was "supported by an objective, credible reason, not necessarily indicative ofcriminality" (People v McIntosh, 96 NY2d 521, 525 [2001]), based on defendant'ssuspicious behavior when he appeared to notice the marked police car (see Montero, 284AD2d at 160). Defendant's contention that the officer's command to "turn around" was a levelthree stop is unpreserved, and we decline to review it in the interest of justice. We rejectdefendant's argument that, pursuant to CPL 470.15 (1), we lack jurisdiction to review the level ofthe police encounter at issue here, as this case does not present a LaFontaine issue(People v LaFontaine, 92 NY2d 470 [1998]). Although the judicial hearing officer'sdecision may have been inartfully worded, the fair import of his finding that the officers had a"credible reason" to stop the defendant is that the encounter at issue was in fact a level onerequest for information (see People vNicholson, 26 NY3d 813, 825 [2016] [noting that an appellate court is not prohibited"from considering the record and the proffer colloquy with counsel to understand the context ofthe trial court's ultimate determination"]; People v Garrett, 23 NY3d 878, 885 n 2 [2014]).
The court properly exercised its discretion when it asked the jury whether it had reached apartial verdict. The trial court is in the best position to decide whether to make such an inquiry,especially where, as here, jury notes give an indication that such a query might be appropriate,and we have repeatedly upheld the court's authority in this regard (see e.g. People v Adamson, 127 AD3d566, 566 [1st Dept 2015], lv denied 25 NY3d 1197 [2015]). The court specificallyurged the jury not to rush, "and there is no indication that the jurors felt compelled to reach averdict against their will" (People vHall, 105 AD3d 658, 658 [1st Dept 2013], lv denied 21 NY3d 1016 [2013]). Thefact that the jury reached a full verdict shortly after the court's query [*2]does not establish that the court's inquiry was coercive (see e.g. People v Brown, 1 AD3d147 [1st Dept 2003], lv denied 1 NY3d 625 [2004]).
The admission of incriminating, nonprivileged phone calls that defendant chose to makewhile incarcerated, after receiving multiple forms of notice that his calls may be monitored andrecorded, did not violate federal or state wiretapping laws (see United States v Conley,531 F3d 56, 58 [1st Cir 2008]; United States v Verdin-Garcia, 516 F3d 884, 893-895[10th Cir 2008], cert denied 555 US 868 [2008]; United States v Horr, 963 F2d1124, 1125-1126 [8th Cir 1992], cert denied 506 US 848 [1992]; United States vAmen, 831 F2d 373 [2d Cir 1987], cert denied 485 US 1021 [1988]; People v Jackson, 125 AD3d 1002,1003-1004 [2d Dept 2015], lv denied 25 NY3d 1202 [2015]), defendant's federal or stateright to counsel (see People vJohnson, 27 NY3d 199 [2016]; People v Velasquez, 68 NY2d 533 [1986]), orhis due process right to participate in the preparation of his own defense (see Florence vBoard of Chosen Freeholders of County of Burlington, 566 US 318 [2012]; Matter of Lucas v Scully, 71 NY2d 399, 406 [1988]). Defendant was free tomake privileged calls to his attorney on all aspects of his case, including pretrial investigation.Defendant was also free to limit his social calls to matters unrelated to his case. Instead,defendant chose to assume the risks involved in making unprotected case-relatedcommunications. Furthermore, since no public servant, or anyone else, did anything to obtain anystatements from defendant, his phone conversations cannot be viewed as involuntary forpurposes of CPL 60.45, and no such jury instruction was warranted.
Defendant's legal sufficiency claim regarding his reckless endangerment conviction isunpreserved and we decline to review it in the interest of justice. As an alternative holding, wereject it on the merits. We also find that the verdict was not against the weight of the evidence(see People v Danielson, 9 NY3d342, 348 [2007]). We likewise decline to review defendant's unpreserved challenge to avoice identification procedure, and reject it in any event (see People v McRae, 195 AD2d180 [1st Dept 1994], lv denied 83 NY2d 969 [1994]). We have considered and rejecteddefendant's ineffective assistance of counsel claims relating to the issues we have found to beunpreserved (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland vWashington, 466 US 668 [1984]). Accordingly, we do not find that any lack of preservationmay be excused on the ground of ineffective assistance.
The court properly exercised its discretion in denying youthful offender treatment (seePeople v Drayton, 39 NY2d 580 [1976]), and we perceive no basis for reducing the sentence.Concur—Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.