| People v McKee |
| 2019 NY Slip Op 05885 [174 AD3d 1444] |
| July 31, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Willie McKee, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Nathaniel V. Riley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedDecember 9, 2016. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree, assault in the first degree, criminal possession of stolen property in the fourth degree,assault in the second degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofrobbery in the first degree (Penal Law § 160.15 [1]), assault in the first degree(§ 120.10 [4]), assault in the second degree (§ 120.05 [12]), criminalpossession of stolen property in the fourth degree (§ 165.45 [2]), and resisting arrest(§ 205.30). We reject defendant's contention that the court erred in refusing tosuppress, as the product of an unlawful stop, physical evidence recovered from defendant'sperson and defendant's statements to the police, among other things. We conclude that, "[b]asedupon the totality of the circumstances, including the short period of time between the [policedispatch] reporting [the incident] and the arrival of the police officer at the reported location,defendant's presence at that location, and the officer's observations that defendant's physicalcharacteristics and clothing matched the description of the suspect, the officer was justified inforcibly detaining defendant in order to quickly confirm or dispel [his] reasonable suspicion ofdefendant's [involvement in the reported incident]" (People v Pruitt, 158 AD3d 1138, 1139 [4th Dept 2018], lvdenied 31 NY3d 1120 [2018] [internal quotation marks omitted]; see People v Carson, 122 AD3d1391, 1392 [4th Dept 2014], lv denied 25 NY3d 1161 [2015]; People v Evans, 34 AD3d 1301,1302 [4th Dept 2006], lv denied 8 NY3d 845 [2007]). Contrary to defendant's contention,the fact that the officer physically restrained defendant before placing him in handcuffs did notelevate the forcible detention into an arrest; rather, the officer's conduct was justified under thecircumstances based on defendant's failure to obey the officer's requests that he stop walkingaway, the officer's reasonable suspicion that defendant had just been involved in a violentphysical altercation, and the officer's concern that defendant was armed (see People v Arce, 150 AD3d1403, 1404-1405 [3d Dept 2017], lv denied 29 NY3d 1090 [2017]; People vBoyd, 272 AD2d 898, 899 [4th Dept 2000], lv denied 95 NY2d 850 [2000]; see generally People v Balkum, 71AD3d 1594, 1595 [4th Dept 2010], lv denied 14 NY3d 885 [2010]).
Assuming, arguendo, that the photo array used to identify defendant was unduly suggestive,we conclude that any error in receiving that identification in evidence was harmless (seegenerally People v Owens, 74 NY2d 677, 678 [1989]).
We likewise reject defendant's contention that he was deprived of a fair trial based onprosecutorial misconduct during summation. Many of the comments in question "were within thebroad bounds of rhetorical comment permissible during summations . . . , and theywere either a fair response to defense counsel's summation or fair comment on the evidence" (People v Ali, 89 AD3d 1412, 1414[4th Dept 2011], lv denied 18 NY3d 881 [2012] [internal quotation marks omitted]). Tothe extent that certain comments may have exceeded those bounds, we conclude that thecomments "were not so egregious as to deprive defendant of a fair trial" (id. [internalquotation marks omitted]). We further conclude that defense counsel's failure to object to certainof those statements did not constitute ineffective assistance of counsel (see People v Lyon, 77 AD3d 1338,1339 [4th Dept 2010], lv denied 15 NY3d 954 [2010]).
In light of the circumstances of the offense, which involved a violent attack on an elderlycitizen, and considering defendant's criminal history, we conclude that the sentence is not undulyharsh or severe (see People v Whitlatch, 294 AD2d 909, 910 [4th Dept 2002], lvdenied 98 NY2d 703 [2002]). We have considered defendant's remaining contention andconclude that it does not require reversal or modification of the judgment.Present—Centra, J.P., Carni, Lindley, NeMoyer and Troutman, JJ.