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In Chan, 36 Misc. 3d 44, 950 N.Y.S.2d 223, the defendant was charged with three class A misdemeanors and pleaded guilty, in full satisfaction of the accusatory instrument, to the lesser offense of disorderly conduct, a violation which was not charged therein and which did not constitute a lesser included offense.
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2012-04-13
The PEOPLE of the State of New York, Respondent, v. Juan D. CHAN, Defendant, and Kerrick Miller–Brown, Appellant.
Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Sharon Y. Brodt of counsel), for respondent. Legal Aid Society, New York City (Steven Banks and Desiree Sheridan of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Sharon Y. Brodt of counsel), for respondent. Legal Aid Society, New York City (Steven Banks and Desiree Sheridan of counsel), for appellant.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Toko Serita, J.), rendered January 23, 2009. The judgment convicted defendant,upon his plea of guilty, of disorderly conduct.
ORDERED that the judgment of conviction is affirmed.
Kerrick Miller–Brown (defendant) and a codefendant were charged, in a misdemeanor complaint, with multiple offenses. Following the denial of his motions to suppress evidence, defendant pleaded guilty to disorderly conduct (Penal Law § 240.20) in satisfaction of so much of the accusatory instrument as was applicable to him. On appeal, defendant argues that the accusatory instrument was never formally converted to an information and, as he never waived his right to be prosecuted by information, the judgment of conviction must be reversed; that the plea colloquy did not establish that the plea was knowingly, voluntarily and intelligently rendered; that his statements should have been suppressed either as the fruit of an investigatory detention without reasonable cause or unwarned custodial interrogation; and that a showup identification should have been suppressed as the result of an overly suggestive identification proceeding. We find these contentions either unpreserved for appellate review or without merit.
“By statute, a defendant has the right to be prosecuted by information” ( People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434 [1974];seeCPL 100.10[1]; 170.65[1], [3] ), and the record does not reveal that the accusatory instrument was ever formally converted to an information or that defendant waived his right to be prosecuted by information ( see People v. Casey, 95 N.Y.2d 354, 359, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000];People v. Connor, 63 N.Y.2d 11, 14, 479 N.Y.S.2d 197, 468 N.E.2d 35 [1984];People v. Riser, 22 Misc.3d 88, 90, 875 N.Y.S.2d 740 [App. Term, 2d, 11th & 13th Jud. Dists. 2009] ). However, the accusatory instrument may be construed to satisfy the formal requirements of an information. Each count in a multi-count instrument may be considered independently for purposes of pleading sufficiency ( seeCPL 170.30[1]; e.g. People v. Minor, 144 Misc.2d 846, 848, 549 N.Y.S.2d 897 [App. Term, 2d & 11th Jud. Dists. 1989] ), and, if the allegations in the accusatory instrument satisfied the pleading requirements of an information as to any of the counts, the accusatory instrument would support defendant's guilty plea to disorderly conduct, an uncharged offense ( see People v. Kalin, 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009];People v. Williams, 25 Misc.3d 15, 18, 887 N.Y.S.2d 749 [App. Term, 9th & 10th Jud. Dists. 2009] ). A defendant, for purposes of a plea disposition, may plead guilty to an offense that is “neither charged in the [accusatory instrument] nor included as a lesser included offense for purposes of plea bargaining” ( People v. Keizer, 100 N.Y.2d 114, 117, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ).
Defendant contends that the accusatory instrument depends, for the sufficiency of the allegations of each count, upon the hearsay allegations of an eyewitness to the commission of all of the offenses charged and, thus, cannot satisfy the pleading requirements of an information. However, a guilty plea forfeits a hearsay objection to an information's sufficiency ( id. at 123, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [“Having pleaded guilty, defendant cannot now revisit an alleged hearsay defect (in an information). This claim is forfeited by operation of law as a consequence of his (or her) guilty plea”] ).
The accusatory instrument contains defendant's admission that he aided and abetted, as the “lookout,” the codefendant's commission of two of the three offenses alleged in the accusatory instrument,namely, that, as an eyewitness informed the arresting officer shortly before the officer encountered defendants, the codefendant broke the driver's side window of an automobile parked a half-block away from that encounter and removed the rearview mirror and a GPS device. Defendant does not deny that, absent a hearsay issue, the facts are legally sufficient to establish at least one of the offenses alleged in the instrument.
However, “[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50). Although CPL 60.50 refers to “convictions,” the corroboration requirement, applicable by statute to indictments (CPL 190.65[1] ), has been extended to require allegations of corroborative evidence in misdemeanor accusatory instruments ( e.g. People v. Suber, 35 Misc.3d 53, 944 N.Y.S.2d 815 [App. Term, 2d, 11th & 13th Jud. Dists. 2011]; People v. Dolan, 1 Misc.3d 32, 34, 770 N.Y.S.2d 558 [App. Term, 1st Dept. 2003] ). Even at a trial, the evidentiary threshold for corroboration is “low” ( People v. Chico, 90 N.Y.2d 585, 591, 665 N.Y.S.2d 5, 687 N.E.2d 1288 [1997] ), requiring only “some proof, of whatever weight, that a crime was committed by someone” ( People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139 [1975] ). Further, “[i]n general, CPL 60.50 does not require corroboration of the mental element of the crime charged” ( People v. Chico, 90 N.Y.2d at 590, 665 N.Y.S.2d 5, 687 N.E.2d 1288), nor need the corroboration constitute “additional proof ... connect[ing] the defendant with the crime” ( People v. Lipsky, 57 N.Y.2d 560, 571, 457 N.Y.S.2d 451, 443 N.E.2d 925 [1982] ) or “corroborat[e the] confessions or admissions in every detail” ( People v. Booden, 69 N.Y.2d 185, 187, 513 N.Y.S.2d 87, 505 N.E.2d 598 [1987] ). We note that the prima facie proof requirement for an accusatory instrument is lower than what is required to prove the offenses beyond a reasonable doubt at a trial ( People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999] ).
Here, the accusatory instrument states that an identified eyewitness informed the complainant that, at a specified time and location, he had observed defendant standing beside an automobile while the codefendant broke a window and stole property from within the vehicle, and another identified informant told the complainant that he was the automobile's “legal custodian” and that he had not given defendant (or the codefendant) permission to damage the car or to remove anything from the interior. A defendant's presence at the scene of an offense may indicate “a consciousness of guilt” ( People v. Lipsky, 57 N.Y.2d at 571, 457 N.Y.S.2d 451, 443 N.E.2d 925), and, thus, the corroboration requirement was satisfied.
Defendant's challenge to the sufficiency of his guilty plea is not preserved for
appellate review (CPL 470.05[2]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 [1999];People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995];People v. Perry, 60 A.D.3d 974, 874 N.Y.S.2d 916 [2009] ), and none of the exceptions to this rule are apparent on this record ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];People v. Rivera, 24 A.D.3d 1033, 805 N.Y.S.2d 732 [2005] ). Defendant's challenge to the propriety of the officers' initial stop, detention, and questioning (CPL 140.50[1]; see People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992]; People v. Mais, 71 A.D.3d 1163, 1164, 897 N.Y.S.2d 716 [2010];cf. People v. Terrell, 185 A.D.2d 906, 907, 587 N.Y.S.2d 8 [1992];People v. Chinchillo, 120 A.D.2d 266, 268, 509 N.Y.S.2d 153 [1986] ) is also not preserved for appellate review as defendant never raised this claim before the hearing court, which, consequently, never ruled on the issue (CPL 470.05[2]; People v. Adams, 57 N.Y.2d 1035, 1037, 457 N.Y.S.2d 783, 444 N.E.2d 33 [1982];People v. Gilyard, 32 A.D.3d 1046, 821 N.Y.S.2d 461 [2006];People v. Green, 10 A.D.3d 664, 781 N.Y.S.2d 700 [2004] ).
The hearing record supports the conclusion of the judicial hearing officer, as adopted by the Criminal Court, that defendant was not in custody when he uttered his incriminating statement. The hearing court credited the arresting officer's narrative of the events leading to defendant's arrest, a determination that is entitled to great deference on appeal unless clearly unsupported by the record ( People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977];People v. Marinus, 90 A.D.3d 677, 678, 933 N.Y.S.2d 872 [2011] ). The question is whether a reasonable person in defendant's position, innocent of any crime, would have believed that he or she was in custody at the time the statement was made ( People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969];see also People v. Centano, 76 N.Y.2d 837, 838, 560 N.Y.S.2d 121, 559 N.E.2d 1280 [1990] ). Not all temporary detentions of suspects for on-the-scene investigative questioning trigger Miranda warnings ( People v. Alls, 83 N.Y.2d 94, 99, 608 N.Y.S.2d 139, 629 N.E.2d 1018 [1993];see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ). Here, defendant was stopped and asked a single generic question as to his activities, and was thereafter merely required to remain at his location, on a street corner, while the officer left for several minutes to speak to a witness. When the officer returned to where defendant had been waiting in the company of other plainclothes police officers, but otherwise unrestrained, the officer asked defendant essentially the identical question and received the incriminating response. It was only after this response and a subsequent showup that the officer arrested defendant. Absent from these circumstances are any of the indicia of custody that would induce defendant reasonably to believe that he was under arrest.
Finally, defendant's claim that the showup evidence should have been suppressed is also without merit. Although generally disfavored, showup procedures are permitted “where ... employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification” ( People v. Guitierres, 82 A.D.3d 1116, 1117, 919 N.Y.S.2d 211 [2011];see generally People v. Ortiz, 90 N.Y.2d 533, 664 N.Y.S.2d 243, 686 N.E.2d 1337 [1997];People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ). “[T]he limits of an appropriate time between the alleged crime and a showup identification may vary from case to case” ( People v. Johnson, 81 N.Y.2d 828, 831, 595 N.Y.S.2d 385, 611 N.E.2d 286 [1993];see also People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] ). While the People “must demonstrate that the showup was reasonable under the circumstances,” it is defendant's “ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression” ( People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).
Here, the showup commenced about 35 minutes after the officers had received the radio report, at the scene of the automobile break-in, and at a location the officer described as “lit” and a half-block from where the police had encountered defendant. Although plainclothes police officers were present, defendant was not handcuffed or otherwise subject to restraint. Aside from the presence of persons who were obviously police officers, there are no other facts from which undue suggestiveness may be inferred ( see People v. Gatling, 38 A.D.3d 239, 240, 831 N.Y.S.2d 157 [2007];People v. Lockhart, 12 A.D.3d 842, 844, 784 N.Y.S.2d 686 [2004];see also People v. Wilburn, 40 A.D.3d 508, 509, 837 N.Y.S.2d 71 [2007] [“The fact that defendant ... was viewed in the presence of plainclothes officers and his codefendant ... did not render the identification procedure unduly suggestive”]; People v. Samuels, 39 A.D.3d 569, 570, 833 N.Y.S.2d 575 [2007] ). Thus, the People satisfied their initial burden to establish the reasonableness of the police conduct and the lack of undue suggestiveness in the showup identification and defendant did not satisfy his burden of proving that the procedure was unduly suggestive ( People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302 [2008] ).
Accordingly, the judgment of conviction is affirmed.