| People v Baez |
| 2019 NY Slip Op 06163 [175 AD3d 553] |
| August 21, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mark Baez, Appellant. |
Paul Skip Laisure, New York, NY (Ronald Zapata of counsel), for appellant, and appellantpro se.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Christopher S. Bae of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (SalvatoreModica, J.), rendered July 19, 2013, convicting him of robbery in the first degree, criminalpossession of stolen property in the fifth degree, resisting arrest, and criminal possession of aweapon in the fourth degree, upon a jury verdict, and sentencing him, as a second violent felonyoffender, inter alia, to a determinate term of imprisonment of 25 years, to be followed by 5 yearsof postrelease supervision, on the conviction of robbery in the first degree. The appeal brings upfor review the denial, after a hearing (Steven W. Paynter, J.), of those branches of the defendant'somnibus motion which were to suppress identification testimony and physical evidence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed on the conviction of robbery in the first degree from a determinateterm of imprisonment of 25 years, to be followed by 5 years of postrelease supervision, to adeterminate term of imprisonment of 15 years, to be followed by 5 years of postreleasesupervision; as so modified, the judgment is affirmed.
We agree with the Supreme Court's determination denying that branch of the defendant'somnibus motion which was to suppress identification testimony. The defendant was identified bythe complainant during a showup procedure conducted near the crime scene. "Showupprocedures, although generally disfavored, are permissible where employed in close spatial andtemporal proximity to the commission of the crime for the purpose of securing a prompt andreliable identification" (People vCastro, 149 AD3d 862, 863 [2017]; see People v Duuvon, 77 NY2d 541, 544[1991]; People v Lancaster, 166AD3d 807 [2018]; People vWard, 116 AD3d 989 [2014];People v McKinnon, 78 AD3d 864 [2010]). Here, the evidence adduced at thesuppression hearing established that the showup took place 30 minutes after the crime and eightblocks away from the crime scene (seePeople v Slattery, 147 AD3d 788, 790 [2017]; People v Williams, 143 AD3d 847 [2016]; People v Huerta, 141 AD3d 602[2016]; People v Williams, 284 AD2d 420 [2001]; People v Rodney, 237 AD2d541 [1997]). Contrary to the defendant's contention, the showup procedure was not renderedunduly suggestive because the complainant knew that the police had a suspect in custody,because the defendant was handcuffed and in the presence of uniformed police officers andpolice cars (see People v Williams, 143 AD3d at 848; People v Gil, 21 AD3d 1120 [2005]), or because the identificationwas made in the presence of recovered property (see People v Fox, 11 AD3d 709 [2004]; People v Hawkins,188 AD2d 616 [1992]; People v Capehart, 151 AD2d 592 [1989]).
Contrary to the contentions raised by the defendant in his pro se supplemental brief, thepolice had reasonable suspicion to stop the defendant on the basis of information transmittedover the police radio (see People vCruz, 137 AD3d 1158 [2016]; People v Lynch, 285 AD2d 518 [2001]).Reasonable suspicion escalated to probable cause to arrest when the defendant fled from thepolice officers and physically fought with them (see People v Cruz, 137 AD3d at 1159;People v McDonald, 285 AD2d 615 [2001]). To the extent that the defendant relies ontrial testimony suggesting that a police radio communication did not include a description fittinghim, trial testimony may not be considered in evaluating a suppression ruling on appeal (see People v Perez-Rodriguez, 166AD3d 659 [2018]).
The defendant failed to preserve for appellate review his contention that certain physicalevidence should have been suppressed on the ground that the People failed to demonstrate thatthe items were recovered from him. The defendant did not raise, at the suppression hearing orduring the trial, the specific contention he now raises (see CPL 470.05 [2]; People v Mahoney, 165 AD3d 980[2018]; People v Lassiter, 151AD3d 885 [2017]; People vPleasant, 146 AD3d 985 [2017]). In any event, the contention is without merit.Moreover, the defendant was not deprived of the effective assistance of counsel based on hiscounsel's failure to raise this specific contention before the hearing court. "A defendant is notdenied effective assistance of trial counsel merely because counsel does not make a motion orargument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]; see People v Garris, 99 AD3d1018, 1019 [2012]; People v Plaza, 133 AD2d 857 [1987]).
We agree with the Supreme Court's determination declining to preclude testimony or deliveran adverse inference charge with regard to personal property that the police had returned to thecomplainant in violation of Penal Law § 450.10 (1) (see Penal Law§ 450.10; People vReyes, 27 AD3d 584 [2006]; People v Harris, 23 AD3d 580, 581 [2005]; People vMcDowell, 264 AD2d 858 [1999]; People v Siriani, 216 AD2d 595 [1995]). Noadverse inference charge was warranted, because the People demonstrated that the statutoryviolation had not caused the defendant prejudice, and the defendant failed to show that thestatutory violation had caused him such undue prejudice as to warrant the preclusion of testimony(see Penal Law § 450.10 [10]; People v Reyes, 27 AD3d 584 [2006]; People v Harris, 23AD3d at 581).
The defendant's contention, raised in his pro se supplemental brief, that his due process rightto a fair trial was violated by alleged prosecutorial misconduct during summation is unpreservedfor appellate review (see CPL 470.05 [2]). The defendant failed to object to theprosecutor's challenged comments during the summation, request curative instructions, or timelymove for a mistrial (see People vWilliams, 168 AD3d 1108 [2019]; People v Garguilio, 57 AD3d 797 [2008]; People v Sepulveda, 52 AD3d 539[2008]; People v Hollenquest, 48AD3d 592 [2008]; People vKirby, 34 AD3d 695 [2006]). In any event, the challenged remarks do not warrantreversal.
The defendant failed to preserve for appellate review his contention, raised in his pro sesupplemental brief, that the prosecutor committed misconduct by failing to correct a portion of awitness's testimony that was purportedly false (see People v Phipps, 168 AD3d 881 [2019]; People v Ragen, 140 AD3d 1092[2016]; People v Hatcher, 130AD3d 648 [2015]). In any event, the contention is without merit (see People v Wallender, 27 AD3d955, 959 [2006]; People vMazyck, 3 AD3d 583 [2004]; People v Thomas, 226 AD2d 484 [1996]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]). Scheinkman, P.J., Maltese, Connolly and Brathwaite Nelson,JJ., concur.