| People v Swain |
| 2019 NY Slip Op 00002 [168 AD3d 1130] |
| January 3, 2019 |
| Appellate Division, Third Department |
[*1](January 3, 2019)
| The People of the State of New York,Respondent, v Anthony Swain, Appellant. |
David M. Abbatoy, Rochester, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered March 18, 2016, convicting defendant upon his plea of guilty of the crime of attemptedmurder in the second degree.
Shortly after midnight on January 1, 2015, William Michalko, an officer with the WestElmira Police Department, responded to the scene of a shooting outside of a bar on the north sideof the City of Elmira, Chemung County. By the time he arrived, the assailants had fled. Afterassisting at the bar, Michalko was dispatched to the vicinity of Hudson and Harmon Streets onthe City's south side for a report of shots fired. When he arrived at that location, Michalkoobserved defendant, who he described as about 6 feet tall and wearing a gray hoodie, runningacross a yard and then walking in Michalko's direction. He observed defendant walk between twovehicles and heard a sound, which he described as a "thud." Michalko asked defendant to stopand identify himself and then patted him down for weapons. Finding none, defendant wasreleased.
Meanwhile, Richard Matthews, a deputy with the Chemung County Sheriff's Department,also responded to the shots fired call, stopping at a nearby home around 2:00 a.m., where a groupdispersed upon his arrival. In response, Matthews issued a radio description of one of theindividuals who fled over a fence as a black male, approximately 6 feet tall and wearing grayclothing. Hearing this dispatch, and believing that the description matched defendant, Michalkoreturned to the Hudson/Harmon intersection and observed defendant approaching as well. WhenMichalko activated his headlights, defendant turned and walked away. Michalko pursued andstopped defendant in an alleyway off of Harmon Street. Matthews arrived within minutes andindicated that defendant "could have been the subject" who fled from him. At that point,Michalko placed defendant in handcuffs and secured him in the patrol car so that he andMatthews could check the area between the parked cars. In doing so, Michalko found a handgunnear the back tire of one of the vehicles.
Defendant was transported to the Elmira Police Department, where he was interviewed byInvestigator Zachary Stewart. After waiving his Miranda rights, defendant admitted thathe and his brother had been at the bar, but he denied being involved in the shooting. Defendantthen told Stewart, "I didn't do it, but I did it," which he went on to explain meant that "he was notgoing to tell on anyone else and this was going to be pinned on him anyway[ ]."
In February 2015, defendant was indicted on charges of attempted murder in the seconddegree, criminal use of a firearm in the first degree, criminal possession of a weapon in thesecond degree (two counts), criminal possession of a weapon in the third degree and assault inthe second degree. After County Court denied defendant's motion to suppress the weapon, hisstatement and a witness's identification of him, defendant pleaded guilty to attempted murder inthe second degree in satisfaction of all charges and was sentenced to a prison term of 15 years,with five years of postrelease supervision. Defendant appeals.
Defendant maintains that he was illegally detained under the four-level test outlined inPeople v De Bour (40 NY2d 210, 223 [1976]) while the police searched for and found thehandgun. We agree. Michalko's conduct in placing defendant in handcuffs and locking him in theback seat of the patrol car constituted, at least, a forcible detention, which required Michalko tohave a reasonable suspicion that defendant was involved in a felony or misdemeanor (see People v Moore, 6 NY3d 496,498-499 [2006]; People v Tucker,141 AD3d 748, 750 [2016]). At this point, there was no information tying defendant to theshooting incident at the bar, and the record provides no detail as to the source of the nonspecificshots fired report. Although defendant arguably matched the description of the person who fledfrom Matthews, Michalko had already confirmed that defendant did not possess a weapon. Thesecircumstances do not create a reasonable suspicion that defendant was involved in thecommission of a crime. That Michalko subsequently recovered the handgun, which providedprobable cause for his arrest, does not validate the unlawful detention (see People vMoore, 6 NY3d at 498).
This determination does not end our inquiry as to whether the weapon and the statementshould have been suppressed. Having discarded the handgun in the street, we find that defendantwaived any challenge to the seizure of this item (see People v Howard, 50 NY2d 583,588-589 [1980], cert denied 449 US 1023 [1980]; People v Rozier, 143 AD3d 1258, 1259 [2016]; People vStevenson, 273 AD2d 826, 827 [2000]; People v Riddick, 224 AD2d 782, 784[1996]; compare People v Mueses,132 AD3d 1257, 1258 [2015]). We also decline to suppress the evidence of defendant'sstatement. "[A] confession that is made after an arrest without probable cause is not subject tosuppression if the People adequately demonstrate that the inculpatory admission was attenuatedfrom the improper detention . . . . The attenuation doctrine requires a court toconsider the temporal proximity of the arrest and the confession, the presence of interveningcircumstances and, particularly, the purpose and flagrancy of the official misconduct" (People v Bradford, 15 NY3d 329,333 [2010] [internal quotation marks and citations omitted]). This record does not evidencedeliberate official misconduct. Although we have concluded that Michalko went too far indetaining defendant, he did so to double check the vicinity of the parked cars to determinewhether defendant had discarded anything there. Stewart, who had responded to the scene tosecure the handgun but was not involved in detaining or transporting defendant, administeredMiranda rights to defendant at the police station around 4:00 a.m. By this point, Stewarthad independent witness statements that tied defendant to the shooting at the bar. Defendantproceeded to waive his Miranda rights, and the ensuing interview with Stewart, whichwas videotaped, lasted about 40 minutes. The suppression court noted that defendant was incustody but not handcuffed during the interview, and that no threats or promises had been made.For his part, Stewart described defendant as a "gentleman . . . through the entireinterview, laid back." Given the above, we conclude that defendant's inculpatory statement wasadmissible because it was sufficiently attenuated from the unlawful detention (see People vBradford, 15 NY3d at 333-335).
We further conclude that County Court properly denied defendant's motion to suppress theidentification testimony by Tracy Wilson, who was involved in the bar altercation. At thecommencement of the suppression hearing, the People acknowledged that the photo arraydisplayed to Wilson was compromised and requested that the court conduct an independent basishearing. Wilson did not know defendant prior to the incident, but testified that he noticeddefendant acting suspiciously in the bar and then confronted defendant outside after seeingdefendant and his two companions assault Wilson's friend. Although it was past midnight,Wilson confirmed that there was enough lighting outside to see defendant's face. He was about 8to 10 feet from defendant when defendant pulled out a gun and began shooting. Wilsonexplained, "We've never lost eye contact that whole time from when I approached him to thatstreet" where the shooting began—an encounter that lasted about 10 minutes. Creditingthis testimony, County Court concluded that there was a sufficiently reliable independent basisfor Wilson's identification of defendant at the suppression hearing notwithstanding the improperphoto array. We defer to that assessment and find clear and convincing evidence that Wilson'sidentification testimony was based on his interactions with defendant, not the photo array (see People v Marshall, 26 NY3d495, 506-507 [2015]; People vSmith, 122 AD3d 1162, 1164 [2014]; People v Parker, 257 AD2d 693, 694-695[1999], lv denied 93 NY2d 1024 [1999]).
Finally, we are not persuaded by defendant's contention that he was deprived of his right tothe effective assistance of counsel. This argument keys into County Court's removal of appointedtrial counsel for failing to submit a post-suppression hearing memorandum, and the assertedfailure of replacement counsel to properly address all of the suppression issues. Our review of thesuppression hearing transcript shows that counsel provided reasonably competent representation,as the details of the events at issue were adequately explored. Important nuances were broughtout on cross-examination, such as the fact that Wilson could not tell what kind of gun defendantwas holding, Matthews could not find anything to confirm that shots had been fired, Michalkowas not provided any details as to the shots fired report and Michalko confirmed that hehandcuffed and locked defendant in the patrol car. Moreover, we have concluded that the courtproperly denied defendant's suppression motion, and ineffective assistance of counsel does notarise from failing to make an argument with "little or no chance of success" (People v Caban, 5 NY3d 143, 152[2005] [internal quotation marks and citation omitted]).
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.