| People v Smith |
| 2019 NY Slip Op 05574 [174 AD3d 655] |
| July 10, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lamont Smith, Appellant. |
Paul Skip Laisure, New York, NY (Joshua M. Levine of counsel), for appellant, andappellant pro se.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephen A.Knopf, J.), rendered December 18, 2014, convicting him of burglary in the first degree (threecounts), robbery in the first degree (three counts), robbery in the second degree (three counts),assault in the second degree (two counts), and criminal possession of stolen property in the fifthdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
On April 2, 2011, the defendant, along with two codefendants, committed a push-in gunpointrobbery inside an apartment, and physically assaulted two of the complainants. Upon respondingto a 911 call, police officers observed what appeared to be blood stains outside the complainants'apartment and a bloody shoeprint near a door to a stairwell. The officers tracked a trail of bloodto an apartment two floors below. When the police officers knocked on that apartment door, itwas answered by Monet Paige, who resided in that apartment. In response to the officers'questioning, Paige, appearing nervous and evasive, informed them that three males were insidethe apartment with her two children. The officers requested that, for safety reasons, all of theoccupants come out of the apartment into the hallway. Paige agreed to bring out her older child,but refused to bring out her infant child, and informed the officers that the three male occupantsrefused to come out as well. Subsequently, after an officer observed the reflection, in a window,of a male holding a crying infant inside the apartment, the officers made a warrantless entry intothe apartment to protect the child, and apprehended the defendant and the codefendants. Proceedsof the crime were found in plain view inside the apartment, as were sneakers stained with whatappeared to be blood. A firearm was recovered on the ground underneath the apartment windowoutside the building. Following a pretrial hearing, the Supreme Court denied that branch of thedefendant's omnibus motion which was to suppress the physical evidence. At trial, the Peopleintroduced DNA evidence linking the defendant to the crime.
The defendant's contention, raised in his pro se supplemental brief, that he was deprived ofhis right to testify before the grand jury, is without merit. Criminal Procedure Law§ 190.50 (5) (a) provides a defendant with the right to testify before the grand jury"if, prior to the filing of any indictment . . . in the matter, he serves upon the districtattorney of the county a written notice making such request." Notwithstanding the defendant'sallegations that he signed a waiver of immunity and that he told his attorney of his desire totestify before the grand jury, there is no evidence in the record that either he or his attorneyserved the required written notice on the District Attorney (see CPL 190.50 [5] [a]).Consequently, we agree with the denial of the defendant's motion to dismiss the indictment onthe ground that he was not accorded an opportunity to appear and testify before the grand jury(see id.; CPL 210.20 [1] [c]; 210.35 [4]; People v Sain, 111 AD3d 964 [2013]; People v Griffith, 76 AD3d 1102[2010]).
Contrary to the defendant's contention, the record supports the hearing court's determinationthat the police officers' warrantless entry into the apartment was justified because the officerswere confronted with an emergency situation in which there was an immediate need for theirassistance for the protection of life, the search was not motivated by an intent to arrest suspectsand seize evidence, and there was a reasonable basis, approximating probable cause, to associatethe emergency with the apartment searched (see People v Dallas, 8 NY3d 890 [2007]; People v Mitchell,39 NY2d 173 [1976]; People vRossi, 99 AD3d 947 [2012], affd 24 NY3d 968 [2014]; People v Timmons, 54 AD3d 883[2008]; People v Lenart, 91 AD2d 132 [1983]).
The defendant's contention, also raised in his pro se supplemental brief, that the policeofficers lacked probable cause to arrest him for criminal possession of stolen property under atheory of constructive possession is unpreserved for appellate review (see CPL 470.05[2]; People v DeCasta, 34 AD3d828 [2006]). In any event, the evidence elicited at the suppression hearing established thatthe arresting officers had probable cause to place the defendant under arrest (see People v High, 18 AD3d 775[2005]).
The defendant's specific contention that the Supreme Court's admission into evidence of theDNA profiles and reports, as well as the testimony of the People's expert analyst, violated hisSixth Amendment right to confrontation is unpreserved for appellate review (see CPL470.05 [2]; People v Clinkscales,171 AD3d 1086 [2019]; People vThomas, 168 AD3d 766 [2019]) and, in any event, without merit (see People v Lebron, 171 AD3d1092 [2019]; People v Thomas, 168 AD3d at 767; People v Breazil, 165 AD3d 1159[2018]; People v Gibson, 163 AD3d586 [2018]; People v Evans,157 AD3d 716 [2018]; People vStahl, 141 AD3d 962 [2016]).
Contrary to the defendant's contention, raised in his pro se supplemental brief, the Peoplewere not required to provide him with prior notice of the police officers' testimony pursuant toCPL 710.30, since the officers had not previously participated in any pretrial identificationprocedure (see People v Green, 205 AD2d 800 [1994]; People v Crespo, 111AD2d 251 [1985]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record, and,thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571,575 n 2 [2011]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety, and we decline to review the claim onthis direct appeal (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The remaining contentions raised in the defendant's pro se supplemental brief are withoutmerit. Mastro, J.P., Rivera, Miller and Christopher, JJ., concur.