| People v Hogue |
| 2018 NY Slip Op 08147 [166 AD3d 1009] |
| November 28, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Hogue, Appellant. |
Paul Skip Laisure, New York, NY (Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyceof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Cassandra M. Mullen, J.), rendered December 10, 2015, convicting him of robbery inthe first degree and criminal possession of a weapon in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of robbery in the first degree and criminal possessionof a weapon in the second degree, after a jury trial, arising from a robbery at gunpointwherein the defendant stole the complainant's watch, chain, and car key before fleeing onfoot to a waiting vehicle. The complainant ran after the defendant and shot at the vehicle,and a gun was fired from inside the vehicle. Police officers in the area heard the gunshots. One officer saw muzzle flashes from the passenger side of the vehicle and theofficers pursued the vehicle, stopping it five blocks away. The defendant, seated in thepassenger seat of the vehicle, did not immediately comply with the officers' demand thathe put his hands out of the window. One of the officers testified that the defendant was"fidgeting with the middle dash [board]" before the defendant put his hands out of thewindow. Once both the driver and the defendant were placed under arrest, the vehiclewas taken to the police station for an inventory search. The search revealed a loadedweapon hidden behind the radio panel. A subsequent search of the vehicle revealed thewatch, chain, and car key that the complainant reported stolen.
After a suppression hearing, the Supreme Court, Kings County (Neil J. Firetog, J.),determined that the testimony of the officer regarding hearing gun shots, seeing muzzleflashes, pursuing the vehicle, and recovering a weapon was credible. The court ruled,inter alia, that the arrest of the defendant was based on probable cause.
At trial, the officers, the complainant, and another witness testified with respect tothe incident. The defendant's grand jury testimony, along with several recordings ofphone calls made by the defendant from Rikers Island Correctional Facility, wereadmitted into evidence. At the conclusion of the trial, the jury found the defendant guiltyof both counts.
[*2] The defendant's contentionthat he was deprived of the effective assistance of counsel because his trial counsel failedto move to reopen the suppression hearing is without merit. Counsel will not be deemedineffective for failing to pursue an argument that has little or no chance of success (see People v Flowers, 28NY3d 536, 541 [2016]; People v Brown, 13 NY3d 332, 341 [2009]; People v Ennis, 11 NY3d403, 415 [2008]; People vCaban, 5 NY3d 143, 152 [2005]). Here, the defendant did not establish that theofficer's hearing testimony was inconsistent with testimony elicited from other witnessesat trial, and it is unlikely that the Supreme Court would have granted an application toreopen the suppression hearing or that, if it had done so, it would have suppressed thephysical evidence as a result (see People v Meyers, 162 AD3d 1074, 1075 [2018]).Accordingly, trial counsel was not ineffective for failing to make that application.Moreover, the evidence, the law, and the circumstances of the case, viewed in totality asof the time of the representation, reveal that trial counsel provided meaningfulrepresentation (see People vWright, 25 NY3d 769, 779 [2015]; People v Caban, 5 NY3d at 152;People v Berroa, 99 NY2d 134, 138-139 [2002]; People v Baldi, 54NY2d 137, 146-147 [1981]; People v Meyers, 162 AD3d at 1075).
The defendant's contention that the Supreme Court abdicated its judicial function byallowing prospective jurors, who concluded that they could not be fair and impartial, toopt out of serving on the jury without further inquiry is unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, without merit (People v Gregory, 160 AD3d894 [2018]; People vSantos, 150 AD3d 1270, 1271 [2017]; People v Cunningham, 119 AD3d 601 [2014]).
There is no merit to the defendant's contention that the recordings of his telephonecalls from Rikers Island Correctional Facility were improperly admitted into evidence attrial. The defendant contends that the notice he received that his telephone calls would bemonitored and recorded provided no basis to infer that he consented to the distribution ofthose recordings to the prosecution, and that any consent to the monitoring and recordingof his calls was for the limited purpose of ensuring facility security. These contentionshave been rejected by this Court (see People v Diaz, 149 AD3d 974 [2017]). The defendantimpliedly consented to the monitoring and recording of his telephone conversations byusing the facility's telephones despite being notified that such calls were being monitored(see People v Diaz, 149 AD3d at 975; People v Jackson, 125 AD3d 1002, 1004 [2015]; seealso United States v Workman, 80 F3d 688, 693-694 [2d Cir 1996]; United Statesv Amen, 831 F2d 373, 379 [2d Cir 1987]). Accordingly, the Supreme Court properlyadmitted the recordings of the phone calls (see People v Johnson, 27 NY3d 199, 202 [2016];People v Diaz, 149 AD3d at 975).
Finally, the defendant's claim of prosecutorial misconduct during summation islargely unpreserved for appellate review (see CPL 470.05 [2]). In any event, aprosecutor has "broad latitude" in responding to the defense counsel's summation(People v Santiago, 265 AD2d 351, 352 [1999]). The comments at issue hereconstituted fair comment on the evidence or were responsive to the defense's ownsummation (see People vCarter, 152 AD3d 786 [2017]; People v Rudenko, 151 AD3d 1084 [2017]). Mastro, J.P.,Cohen, Maltese and Christopher, JJ., concur.