| People v Figueroa |
| 2017 NY Slip Op 08957 [156 AD3d 1348] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Edwin Figueroa, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Craig P. Schlanger of counsel), fordefendant-appellant.
Edwin Figueroa, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedOctober 8, 2014. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, after a jury trial, of criminalpossession of a controlled substance in the first degree (Penal Law § 220.21 [1]),defendant contends in his main brief that County Court erred in refusing to suppress hisstatements to the police inasmuch as he was subjected to custodial interrogation and thusMiranda warnings were required. We reject that contention. "In determining whether adefendant was in custody for Miranda purposes, '[t]he test is not what the defendantthought, but rather what a reasonable [person], innocent of any crime, would have thought had he[or she] been in the defendant's position' " (People v Kelley, 91 AD3d 1318, 1318 [4th Dept 2012], lvdenied 19 NY3d 963 [2012], quoting People v Yukl, 25 NY2d 585, 589 [1969],cert denied 400 US 851 [1970]). Here, the record establishes that defendant was stopped bythe police in a public place and was not restrained in any way. Defendant was asked two simplequestions and the encounter lasted a short amount of time. Consequently, we conclude that areasonable person, innocent of any crime, would not have thought that he was in custody andthus Miranda warnings were not necessary (see People v Bennett, 70 NY2d 891,893-894 [1987]; People v Spirles,136 AD3d 1315, 1316 [4th Dept 2016], lv denied 27 NY3d 1007 [2016], certdenied 580 US &mdash, 137 S Ct 298 [2016]; Kelley, 91 AD3d at 1319).
We also reject defendant's contention in his main brief that the court erred in refusing tosuppress all evidence arising from his allegedly improper stop by the police. We conclude thatthe police had reasonable suspicion to stop defendant when he exited a bus based on informationthat they received from a confidential informant, who said that defendant had traveled to NewYork City, purchased a kilo of cocaine, and was returning to Syracuse via bus, and theconfirmatory observations of New York City police officers. Thus, the stop was lawful inasmuchas "sufficient information in the record supports the lower court['s] determination that the tip wasreliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinellitest for the reliability of hearsay tips in this particular context and contained sufficientinformation about defendant['s] unlawful possession of a [controlled substance] to createreasonable suspicion" (People vArgyris, 24 NY3d 1138, 1140-1141 [2014], rearg denied 24 NY3d 1211 [2015],cert denied 577 US &mdash, 136 S Ct 793 [2016]; see People v Torres, 125 AD3d 1481, 1482 [4th Dept 2015], lvdenied 25 NY3d 1172 [2015]). We have considered defendant's remaining contentions in hispro se supplemental brief with respect to the suppression ruling and conclude that they arewithout merit.
We reject defendant's contention in his main brief that he was denied effective assistance ofcounsel. We conclude that "the evidence, the law, and the circumstances of [this] particular case,viewed in totality and as of the time of the representation, reveal that the attorney providedmeaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]). Moreover,defendant's contention in his main brief that his attorney failed to make effective use of certaindiscovery materials while cross-examining the People's witnesses at the suppression hearingconcerns matters outside the record on appeal, and it must therefore be raised by way of a motionpursuant to CPL 440.10 (see People vSanford, 138 AD3d 1435, 1436 [4th Dept 2016]; see generally People v Cyrus, 48 AD3d 150, 152-154 [1st Dept2007], lv denied 10 NY3d 763 [2008]).
We reject defendant's contentions raised in his pro se supplemental brief that the evidencebefore the grand jury was legally insufficient and that the grand jury was improperly instructedon the law inasmuch as those contentions are " 'not reviewable upon an appeal from anensuing judgment of conviction based upon legally sufficient trial evidence' " (People v Baker, 67 AD3d 1446,1447 [4th Dept 2009], lv denied 14 NY3d 769 [2010]; see CPL 210.30 [6];People v Miles, 236 AD2d 786, 787 [4th Dept 1997], lv denied 90 NY2d 861[1997]). Finally, we have reviewed defendant's remaining contentions in his pro se supplementalbrief and conclude that none requires reversal or modification of the judgment.Present—Smith, J.P., Carni, Curran and Winslow, JJ.