| People v Larkins |
| 2017 NY Slip Op 06752 [153 AD3d 1584] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Ronald J.Larkins, Appellant. |
Adam H. Vanbuskirk, Auburn, for defendant-appellant.
Ronald J. Larkins, defendant-appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedApril 21, 2015. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree (three counts), criminal use of a firearm in the first degree (two counts), criminalpossession of a weapon in the second degree (two counts) and criminal possession of a weaponin the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, three counts of robbery in the first degree (Penal Law § 160.15 [2], [3],[4]). The charges arose from an armed robbery of a Best Western hotel in Weedsport, CayugaCounty. Defendant was convicted of the charges in 2011, but this Court reversed the judgmentbased on an improper Molineux ruling and granted a new trial (People v Larkins, 108 AD3d 1210[2013], lv denied 23 NY3d 1022 [2014]). Defendant was convicted of the same chargesafter the new trial.
Defendant contends that County Court abused its discretion in its Sandoval ruling.That contention is not preserved for our review (see CPL 470.05 [2]). The court ruled thatits Sandoval determination from the first trial would apply at the second trial, anddefendant did not object to that ruling (see People v Henderson, 212 AD2d 1031,1031-1032 [1995], lv denied 86 NY2d 736 [1995]; see also People v Combo, 291AD2d 887, 887 [2002], lv denied 98 NY2d 650 [2002]). In any event, we conclude thatthe court properly balanced the appropriate factors and did not abuse its discretion in permittingdefendant to be cross-examined about certain of his prior convictions, allowing aSandoval compromise regarding several other prior convictions, and precluding anyquestioning regarding defendant's remaining prior convictions (see generally People vHayes, 97 NY2d 203, 207-208 [2002]).
Contrary to defendant's contention, we conclude that the evidence, viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legallysufficient to support the conviction (see People v Bleakley, 69 NY2d 490, 495 [1987]). Inparticular, we note with respect to the counts concerning criminal possession of a weapon that,although there is no direct evidence that defendant possessed a loaded weapon in Cayuga County,there is a "valid line of reasoning and permissible inferences [that] could lead a rational person tothe conclusion reached by the [factfinder] on the basis of the [circumstantial] evidence at trial"(People v Williams, 84 NY2d 925, 926 [1994]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we furtherconclude that the verdict is not against the weight of the evidence (see generally Bleakley,69 NY2d at 495).
Contrary to defendant's further contention, the showup identification procedure was notunduly suggestive, and thus the court properly denied his motion to suppress the evidenceconcerning it. Although showup procedures are generally disfavored (see People v Ortiz,90 NY2d 533, 537 [1997]), they are permitted where, as here, they are " 'conducted inclose geographic and temporal proximity to the crime[,] and the procedure used was not undulysuggestive' " (People vWoodard, 83 AD3d 1440, 1441 [2011], lv denied 17 NY3d 803 [2011], quotingPeople v Brisco, 99 NY2d 596, 597 [2003]).
We reject defendant's contention that the court erred in denying, without a hearing, that partof his omnibus motion seeking to suppress evidence seized from his vehicle and his person onthe ground that the police improperly stopped the vehicle. It is well settled that a request tosuppress evidence obtained as the result of an allegedly unlawful search and seizure may bedenied without a hearing where the defendant does not allege a proper legal basis for suppressionor if the "sworn allegations of fact do not as a matter of law support the ground alleged" (CPL710.60 [3] [b]; see People v Mendoza, 82 NY2d 415, 421 [1993]). "Hearings are notautomatic or generally available for the asking by boilerplate allegations. Rather, . . .factual sufficiency [is to] be determined with reference to the face of the pleadings, the context ofthe motion and defendant's access to information" (Mendoza, 82 NY2d at 422). Here,taking into account the information available to defendant, we conclude that his "papers fail toset forth sworn allegations of fact supporting the motion . . . Thus, defendant wasnot entitled to a hearing" (People v Smythe, 210 AD2d 887, 887 [1994], lv denied85 NY2d 943 [1995]; see People vKing, 137 AD3d 1572, 1573 [2016], lv denied 27 NY3d 1134 [2016]; People v Battle, 109 AD3d 1155,1157 [2013], lv denied 22 NY3d 1038 [2013]).
Defendant further contends that defense "counsel was ineffective in failing to morevigorously pursue the suppression issue." We reject that contention. Defendant has not shownthat defense counsel was able to make a more detailed suppression motion, or that such a motion"if made, would have been successful," and thus he has not "establish[ed] that defense counselwas ineffective in failing to make such a motion" (People v Borcyk, 60 AD3d 1489, 1490 [2009], lv denied 12NY3d 923 [2009]; see People vThomas, 79 AD3d 1809, 1809 [2010], lv denied 16 NY3d 900 [2011]).Defendant's contention that the court lulled him into a false sense that there was no need to makea more detailed motion is "raised for the first time in defendant's reply brief and thus is notproperly before us" (People v Jones, 300 AD2d 1119, 1120 [2002], lv denied 2NY3d 801 [2004]; see People vDaigler, 148 AD3d 1685, 1686 [2017]; People v Harris, 129 AD3d 1522, 1525 [2015], lv denied 27NY3d 998 [2016]).
Defendant contends that the court erred in its Molineux ruling by permitting theprosecutor to introduce evidence that he recently had committed another crime in a differentcounty. We reject that contention. The evidence at issue, i.e., testimony from two New YorkState Thruway toll collectors that they heard a police bulletin concerning defendant's car, doesnot establish that defendant recently had committed another crime. Furthermore, even if weassume for the sake of argument that the jury could infer from the police bulletin that defendantrecently had committed another crime, it is well settled that evidence of uncharged crimes isadmissible where, as here, excluding the evidence "would have placed a mystery before the jury"(People v Barnes, 57 AD3d289, 290 [2008], lv denied 12 NY3d 781 [2009]; see People v Morris, 21 NY3d 588, 599 [2013]), i.e., why ThruwayAuthority personnel took particular notice of defendant's vehicle as it exited and then reenteredthe Thruway and why they notified the State Police that they had observed it. Thus, the evidencewas properly admitted because it was inextricably interwoven with the charged crimes, providednecessary background information, and completed the narrative of the two witnesses (see People v Tarver, 2 AD3d 968,969 [2003]; see also People vMolyneaux, 49 AD3d 1220, 1221 [2008], lv denied 10 NY3d 937 [2008]), andthe probative value of the evidence outweighed its potential for prejudice (see generallyPeople v Alvino, 71 NY2d 233, 242 [1987]). In addition, the court gave prompt limitinginstructions concerning the jury's use of the evidence at issue (see Morris, 21 NY3d at598; People v Matthews, 142 AD3d1354, 1355-1356 [2016], lv denied 28 NY3d 1125 [2016]; People v Jackson, 100 AD3d 1258,1261 [2012], lv denied 21 NY3d 1005 [2013], denied reconsideration 21 NY3d1043 [2013]).
We reject defendant's further contention that the People violated the court's Molineuxruling by asking a New York State Trooper during redirect examination a question indicating thatthe bulletin the toll collectors described concerned an incident in Onondaga County. There wasno prejudice from the mention of the name of the county from which the bulletin emanated and,even assuming, arguendo, that "defendant was prejudiced at all, [we conclude that] suchprejudice was minimal" (People vRivers, 18 NY3d 222, 226 [2011]; cf. People v Crider, 301 AD2d 612, 614[2003]).
Defendant further contends that he was denied a fair trial by two instances of allegedprosecutorial misconduct. Defendant's contention concerning an allegedly improper commentmade by the prosecutor during cross-examination is not preserved for our review inasmuch asdefense counsel "fail[ed] to request any further relief after the court sustained his objection" tothe comment (People v Reyes, 34AD3d 331, 331 [2006], lv denied 8 NY3d 884 [2007]; see People v Meacham, 151 AD3d1666, 1667 [2017]; see also Peoplev Goodson, 144 AD3d 1515, 1516 [2016], lv denied 29 NY3d 949 [2017]). Inaddition, defendant made only "an untimely specific objection" after the prosecutor's summationended (People v Miller, 59 AD3d463, 464 [2009], lv denied 12 NY3d 856 [2009]), and thus he also failed to preservefor our review his contention that the prosecutor committed a second act of misconduct bymaking an improper comment during summation. In any event, even if the two comments atissue exceeded the bounds of proper advocacy and thus constituted misconduct, we conclude thatthe "misconduct was not so pervasive or egregious as to deprive defendant of a fair trial"(People v Scott, 163 AD2d 855, 855 [1990], lv denied 76 NY2d 944 [1990],denied upon reconsideration 77 NY2d 843 [1991]; see People v Layton, 16 AD3d 978, 979-980 [2005], lv denied5 NY3d 765 [2005]). Moreover, "the court sustained defendant's objections to the impropercomments and instructed the jury to disregard them, and the jury is presumed to have followedthe court's instructions" (People vPage, 105 AD3d 1380, 1382 [2013], lv denied 23 NY3d 1023 [2014]; seeScott, 163 AD2d at 855).
We reject defendant's contention that the court abused its discretion in adjudicating him apersistent felony offender, and, although we may "substitute our own discretion for that of a trialcourt which has not abused its discretion in the imposition of a sentence" (People v Smart[appeal No. 2], 100 AD3d 1473, 1475 [2012], affd 23 NY3d 213 [2014] [internalquotation marks omitted]; see People vJohnson, 136 AD3d 1417, 1418 [2016], lv denied 27 NY3d 1134 [2016]), weconclude that the sentence is not unduly harsh or severe. Present—Smith, J.P., DeJoseph,Curran, Troutman and Winslow, JJ.