| People v Dogan |
| 2017 NY Slip Op 07060 [154 AD3d 1314] |
| October 6, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v KevinDogan, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered June15, 2015. The judgment convicted defendant, upon his plea of guilty, of assault in the first degreeand robbery in the first degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofassault in the first degree (Penal Law § 120.10 [1]), and three counts of robbery inthe first degree (§ 160.15 [4]), arising from a series of incidents in which he shot aman in the face, used a firearm in an attempt to steal a car, and then used a firearm to steal arental truck. He was apprehended by the police a few minutes after he stole the truck. We rejectdefendant's contention that County Court erred in refusing to suppress, inter alia, all evidenceseized as the result of his apprehension.
Contrary to defendant's initial contention, the testimony of the police officers at thesuppression hearing was not " 'unbelievable as a matter of law, manifestly untrue,physically impossible, contrary to experience, or self-contradictory' " (People v Bush, 107 AD3d 1581,1582 [2013], lv denied 22 NY3d 954 [2013]). " 'The suppression court'scredibility determinations and choice between conflicting inferences to be drawn from the proofare granted deference and will not be disturbed unless unsupported by the record' " (People v Twillie, 28 AD3d 1236,1237 [2006], lv denied 7 NY3d 795 [2006]). Based on our review of the testimony at thehearing, we perceive no basis to disturb the suppression court's determination to credit thetestimony of the police officers (seePeople v Williams, 115 AD3d 1344, 1345 [2014]; Bush, 107 AD3d at1582).
We reject defendant's contentions that the initial encounter constituted a level-three forciblestop, and that the officers lacked the requisite reasonable suspicion that he was involved in acrime (see generally People vMoore, 6 NY3d 496, 498-499 [2006]; People v De Bour, 40 NY2d 210, 223[1976]). Here, defendant matched the physical description of the person reported to have shot aman in the face, attempted to carjack a vehicle from two people nearby and then, at gunpoint,successfully robbed another man of a rental truck. Within a few minutes, defendant was observeda short distance away, exiting a rental truck matching the description of the stolen vehicle, andentering a nearby house. Shortly thereafter, a police officer observed him apparently leaving thathouse. Thus, "based upon defendant's physical and temporal proximity to the scene of thereported incident" and those additional factors (People v McKinley, 101 AD3d 1747, 1748 [2012], lv denied21 NY3d 1017 [2013]), we conclude that the police initially had the requisite foundedsuspicion that criminal activity was afoot to justify their common-law inquiry (see id.; see generally People v Garcia, 20NY3d 317, 322 [2012]; People v Hollman, 79 NY2d 181, 185 [1992]). The courtproperly determined that the police thereafter had the requisite reasonable suspicion thatdefendant "may be engaged in criminal activity" based upon those factors, together with his flightfrom the police (People v Sierra, 83 NY2d 928, 929 [1994]; cf. People v Cady, 103 AD3d1155, 1156 [2013]; People vRiddick, 70 AD3d 1421, 1422-1423 [2010], lv denied 14 NY3d 844[2010]).
Contrary to defendant's contention that he was arrested without probable cause when he washandcuffed and placed in the back of a police vehicle, "[t]he People presented testimony at thesuppression hearing supporting the conclusion that defendant was subjected to a nonarrestdetention preparatory to transporting him back to the location that was the subject of the [crimes]for a showup identification procedure" (People v Andrews, 57 AD3d 1428, 1429 [2008], lv denied12 NY3d 850 [2009]; see People vBolden, 109 AD3d 1170, 1172 [2013], lv denied 22 NY3d 1039 [2013]).Probable cause for defendant's arrest was established when defendant was identified by thevictims of the successful and attempted vehicle thefts as the perpetrator of those crimes.
We reject defendant's contention that the identification procedure was unduly suggestive."Showup identifications 'are strongly disfavored but are permissible if exigent circumstancesrequire immediate identification . . . or[, as in this case,] the suspect [is] captured ator near the crime scene and can be viewed by the [victims] immediately' " (People vJohnson, 81 NY2d 828, 831 [1993]; see People v Duuvon, 77 NY2d 541, 544-545[1991]). We also reject defendant's contention that the showup identification procedure wasrendered unduly suggestive because he was in handcuffs and in the presence of a uniformedpolice officer (see People vSantiago, 83 AD3d 1471, 1471 [2011], lv denied 17 NY3d 800 [2011]; People v Davis, 48 AD3d 1120,1122 [2008], lv denied 10 NY3d 957 [2008]). Defendant's contention that the victims"may have been improperly influenced at the time of the identification is purely speculative" (People v Berry, 50 AD3d 1047,1048 [2008], lv denied 10 NY3d 956 [2008]; see People v Calero, 105 AD3d 864, 865 [2013], lv denied22 NY3d 1039 [2013]), as is his further contention that the police otherwise suggested to thevictims that defendant was involved in either the robbery or the attempted robbery.
Defendant further contends that he was deprived of effective assistance of counsel at thehearing. That contention does not survive his plea of guilty inasmuch as "[t]here is no showingthat the plea bargaining process was infected by any allegedly ineffective assistance or thatdefendant entered the plea because of his attorney['s] allegedly poor performance" (People vBurke, 256 AD2d 1244, 1244 [1998], lv denied 93 NY2d 851 [1999]; see People v Fulton, 133 AD3d1194, 1196 [2015], lv denied 26 NY3d 1109 [2016], denied reconsideration27 NY3d 997 [2016]).
Defendant further contends that the court erred in sentencing him without ruling on hisobjection to the statements that the crime victims provided to the court via the prosecutor, andthat the sentence must be vacated and the matter remitted to the sentencing court for such aruling. We reject that contention. It is well settled that, "as a matter of due process, an offendermay not be sentenced on the basis of materially untrue assumptions or misinformation. . . Rather, [t]o comply with due process . . . the sentencing court mustassure itself that the information upon which it bases the sentence is reliable and accurate"(People v Naranjo, 89 NY2d 1047, 1049 [1997] [internal quotation marks omitted]). It isalso well settled that, with respect to remarks made by a prosecutor at sentencing, "[t]hesentencing court is permitted to consider any evidence relevant to the defendant's history andcharacter in making a sentence determination . . . The key to proper sentencingprocedure is whether the defendant has been afforded an opportunity to refute the informationbefore the court which may negatively influence the court's determination" (People vWilliams, 195 AD2d 492, 493 [1993]).
Here, defense counsel did not object to the content of the information provided by theprosecutor or question its validity. To the contrary, counsel objected solely on the ground that thevictims did not provide the information through the presentence investigation process. Indeed,counsel said that "the fact that the [victims] were going about their daily business and it wasdisrupted by my client's crimes, clearly that's something we can deduce from what occurredhere," and counsel took "as a given that any violent crime[ ] has an effect on its victims." Thus,inasmuch as defendant failed to allege that he was deprived of an opportunity to challenge thecontent of the information provided by the prosecutor (cf. People v James, 114 AD3d 1312, 1312 [2014]), the court didnot err in sentencing defendant without expressly ruling on his objection.
Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Smith,Carni, DeJoseph and Curran, JJ.