| People v White |
| 2020 NY Slip Op 07719 [189 AD3d 634] |
| December 22, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Derrick White, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at pretrial disclosurerulings; Mark Dwyer, J. at jury trial and sentencing), rendered July 21, 2017, convictingdefendant of criminal possession of a weapon in the second degree (two counts), assault in thesecond degree and reckless endangerment in the first degree, and sentencing him, as a persistentviolent felony offender, to an aggregate term of 18 years to life; and order, same court (Dwyer,J.), entered on or about October 23, 2019, which denied defendant's CPL 440.10 motion to vacatethe conviction, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is nobasis for disturbing the jury's determinations concerning identification and credibility. Twoeyewitnesses made reliable identifications of defendant as the assailant, and defendant'schallenges to those identifications are unpersuasive. The failure of other witnesses to identifydefendant was satisfactorily explained, as was the lack of incriminating testimony from theshooting victim. In addition to the identifications, defendant was connected to the crime bystrong circumstantial evidence. Furthermore, portions of recorded phone calls he made whileawaiting trial had no reasonable explanation other than consciousness of guilt.
The court properly denied defendant's motion to vacate the conviction on the ground that histrial counsel was ineffective in failing to challenge the admission of cell site location informationobtained without a warrant. Defendant has not satisfied either the reasonableness or prejudiceprongs of a federal or state ineffectiveness claim (see People v Benevento, 91 NY2d 708,713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). The trial occurred beforethe Supreme Court of the United States decided Carpenter v United States (585 US&mdash, 138 S Ct 2206 [2018]), and a challenge on the ground ultimately accepted inCarpenter would have required calling for a "change in . . . existing law" (People v Feliciano, 17 NY3d 14,28 [2011]). Accordingly, it was objectively reasonable for counsel to rely on then-applicableprecedent from this Court rendering the cell site information admissible (People v Hall, 86 AD3d 450,451-452 [1st Dept 2011], lv denied 19 NY3d 961 [2012], cert denied 568 US1163 [2013]). Furthermore, admission of the cell site information, a minor component of thePeople's strong case, neither deprived defendant of a fair trial nor affected the outcome. To theextent that defendant argues that, as part of his direct appeal, his unpreserved Carpenterclaim should be reviewed as a matter of law on the ground that objection would have been futile,we reject that argument (see People vCrum, 184 AD3d 454, 455 [1st Dept 2020], lv denied 35 NY3d 1065 [2020]).To the extent defendant argues that the claim should be reviewed as a matter of discretion in theinterest of justice, we decline to do so. [*2]As an alternativeholding, we find that any error was harmless under all the circumstances of the case.
The court properly denied defendant's motion to suppress identification evidence, findingthat defendant was not deprived of his limited right to counsel at a lineup. Defendant initiallymentioned his attorney from another case when he declined to speak to the police, but the policeinformed him of the lineup only later, at which point he did not mention his attorney again orrequest the attorney's presence at the lineup (see People v Rios, 81 AD3d 489 [1st Dept 2011], lv denied16 NY3d 898 [2011]). The right to have an attorney from an unrelated case, who has not enteredthe present case, attend an investigatory lineup is triggered by an unequivocal request made by adefendant in custody (id.). The fact that a detective attempted to contact the attorney fromdefendant's unrelated case did not create a request for the presence of counsel where noneexisted.
Defendant was not precluded from raising a third-party culpability defense. Defendantappears to be challenging a ruling by a motion court on pretrial disclosure matters that hadnothing to do with the type of defense defendant would or would not be permitted to raise at trial.Defendant had a full opportunity to make a third-party culpability claim at trial, including byeliciting the fact that in a 911 call (that was apparently untraceable), an anonymous caller nameda person other than defendant as the assailant.
Upon our in camera review of the record of a Darden hearing, we find that the courtproperly found that the police had probable cause to arrest defendant.
We have considered defendant's remaining arguments and find them to be unavailing.Concur—Friedman, J.P., Renwick, Singh, Kennedy, Shulman, JJ.