Opinion
03-23-2016
The PEOPLE, etc., respondent, v. Eduardo CRUZ, appellant.
Michael A. Fiechter, Bellmore, N.Y., for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and W. Thomas Hughes of counsel), for respondent.
Michael A. Fiechter, Bellmore, N.Y., for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and W. Thomas Hughes of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered October 2, 2013, convicting him of robbery in the first degree (nine counts), robbery in the second degree (five counts), burglary in the first degree (five counts), burglary in the second degree, criminal possession of a weapon in the fourth degree (two counts), unlawful imprisonment in the second degree (three counts), attempted unlawful imprisonment in the second degree, assault in the second degree (two counts), resisting arrest, criminal possession of stolen property in the fifth degree, and escape in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Calabrese, J.), of the suppression of the defendant's statements to law enforcement officials, identification testimony, and physical evidence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied suppression of statements he made after his arrest. The totality of the circumstances establishes that the statements were voluntarily made after the defendant knowingly and voluntarily waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Shears, 40 A.D.3d 661, 662, 833 N.Y.S.2d 410; People v. Morales, 228 A.D.2d 525, 644 N.Y.S.2d 303; People v. Cureton, 139 A.D.2d 756, 527 N.Y.S.2d 505).
The defendant's contention that there was no probable cause for his warrantless arrest because the People failed to satisfy the two-pronged Aguilar–Spinelli test (see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) is unpreserved for appellate review, since the defendant failed to raise this specific argument in support of suppression before the hearing court (see CPL 470.05[2]; People v. Jackson, 105 A.D.3d 866, 868, 962 N.Y.S.2d 679). In any event, the People did not have to satisfy the basis-of-knowledge prong of the Aguilar–Spinelli test. Instead, they were required to meet the less demanding reasonable suspicion standard (see People v. Argyris, 99 A.D.3d 808, 810, 952 N.Y.S.2d 254, affd. 24 N.Y.3d 1138, 3 N.Y.S.3d 711, 27 N.E.3d 425; People v. Colucci, 268 A.D.2d 531, 701 N.Y.S.2d 446). Here, the police had reasonable suspicion to stop the vehicle in which the defendant was a passenger on the basis of the information a police sergeant received from police radio transmissions (see People v. Ceruti, 133 A.D.3d 610, 611, 20 N.Y.S.3d 378; People v. Fields, 127 A.D.3d 782, 783, 7 N.Y.S.3d 236; People v. Argyris, 99 A.D.3d at 810, 952 N.Y.S.2d 254; People v. Fleming, 65 A.D.3d 702, 703, 884 N.Y.S.2d 477). Reasonable suspicion then escalated to probable cause for arrest when, according to the police sergeant's hearing testimony, the defendant “knock[ed]” the police sergeant off of him and fled the scene (see People v. McDonald, 285 A.D.2d 615, 728 N.Y.S.2d 746; People v. Elmore, 236 A.D.2d 851, 852, 653 N.Y.S.2d 1005; People v. Troche, 185 A.D.2d 368, 586 N.Y.S.2d 302; People v. Benbow, 170 A.D.2d 456, 565 N.Y.S.2d 545). Thus, the hearing court properly denied suppression of the defendant's statements, the identification testimony, and the physical evidence.
Since there was probable cause to arrest the defendant, the defendant was properly charged with escape in the third degree and resisting arrest (Penal Law §§ 205.05, 205.30).
The defendant's contention that the prosecution failed to establish his guilt of burglary in the first degree, robbery in the second degree, and assault in the second degree beyond a reasonable doubt because the complainants did not sustain a “physical injury” within the meaning of Penal Law § 10.00(9) is unpreserved for appellate review, as it was not raised with specificity in his motion for a trial order of dismissal (see CPL 470.05 [2]; People v. Saeed, 60 A.D.3d 975, 977, 875 N.Y.S.2d 566; People v. Alston, 42 A.D.3d 468, 469, 838 N.Y.S.2d 671). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support the jury's finding of physical injury (see People v. Saeed, 60 A.D.3d at 977, 875 N.Y.S.2d 566; People v. Williams, 23 A.D.3d 589, 590, 806 N.Y.S.2d 610; People v. Rivera, 183 A.D.2d 792, 793, 583 N.Y.S.2d 520). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on the subject counts was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that the People failed to present legally sufficient evidence that property was stolen with respect to his convictions of robbery in the first degree and robbery in the second degree under counts one, two, four, five, seven, eight, ten, and eleven of the indictment is unpreserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of robbery in the first degree and robbery in the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on the subject counts was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
Based upon the record before us, the defendant received the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The defendant's contention that the sentencing court penalized him for exercising his right to a jury trial is unpreserved for appellate review since he did not set forth this issue on the record at the time of sentencing (see People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017; People v. Martinez, 55 A.D.3d 753, 754, 864 N.Y.S.2d 776). In any event, the defendant's contention is without merit. The fact that the sentence imposed after trial was greater than that offered during plea negotiations is not, standing alone, an indication that the defendant was punished for asserting his right to proceed to trial (see People v. Valery, 135 A.D.3d 975, 24 N.Y.S.3d 362). There is no indication in the record that the sentence was the result of vindictiveness or retribution for the defendant's refusal to accept a plea and his exercise of the right to a jury trial (see id.; People v. Garcia, 46 A.D.3d 573, 846 N.Y.S.2d 373). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). Finally, that two of the defendant's codefendants received lesser sentences than the defendant does not render the defendant's sentence excessive under the circumstances of this case (see People v. Bryant, 82 A.D.3d 1114, 919 N.Y.S.2d 341; People v. Scott, 55 A.D.2d 963, 391 N.Y.S.2d 448).
The defendant's remaining contentions are without merit.