Opinion
2016–11019 Ind.No. 1217/09
11-25-2020
The PEOPLE, etc., Respondent, v. Jermaine DUNBAR, Appellant.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Sharon Y. Brodt of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Sharon Y. Brodt of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered September 22, 2016, convicting him of attempted robbery in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Robert C. McGann, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification evidence. By decision and order dated December 18, 2019, this Court remitted the matter to the Supreme Court, Queens County, to hear and report on those branches of the defendant's omnibus motion which were to suppress physical evidence and identification evidence, and held the appeal in abeyance in the interim (see People v. Dunbar, 178 A.D.3d 948, 116 N.Y.S.3d 293 ). The Supreme Court, Queens County (Joseph A. Zayas, J.), has now filed its report.
ORDERED that the judgment is affirmed. On a motion by a defendant to suppress physical evidence, "the People have the burden of going forward to show the legality of the police conduct in the first instance" ( People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 [emphasis omitted]; see People v. Blinker, 80 A.D.3d 619, 620, 915 N.Y.S.2d 593 ; People v. Hernandez, 40 A.D.3d 777, 778, 836 N.Y.S.2d 219 ; People v. Thomas, 291 A.D.2d 462, 463, 738 N.Y.S.2d 357 ). The defendant, however, "bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him" ( People v. Thomas, 291 A.D.2d at 463, 738 N.Y.S.2d 357 ; see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ; People v. Whitehurst, 25 N.Y.2d at 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 ). "The factual findings and credibility determinations of the Supreme Court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" ( People v. Baliukonis, 35 A.D.3d 626, 627, 829 N.Y.S.2d 112 ; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ; People v. Blinker, 80 A.D.3d at 620, 915 N.Y.S.2d 593 ; People v. Johnson, 79 A.D.3d 905, 906, 912 N.Y.S.2d 303 ).
Here, the People met their burden of establishing the legality of the police conduct in the first instance. Contrary to the defendant's contention, the police had reasonable suspicion to stop the vehicle in which he was a passenger based on a radio transmission connecting an attempted robbery to the getaway vehicle (see People v. Ceruti, 133 A.D.3d 610, 611, 20 N.Y.S.3d 378 ; People v. Castillo, 91 A.D.3d 883, 936 N.Y.S.2d 675 ; People v. Bianchi, 208 A.D.2d 551, 551–552, 616 N.Y.S.2d 783 ). The information regarding the description of the vehicle, although supplied by an unidentified citizen informant, was reliable in that it was provided during a face-to-face encounter with a police officer in the immediate vicinity of the crime scene (see People v. Letriz, 103 A.D.3d 446, 446, 962 N.Y.S.2d 1 ; People v. Miles, 210 A.D.2d 353, 353, 620 N.Y.S.2d 13 ). Moreover, the police stopped the vehicle in close geographical and temporal proximity to the crime insofar as the stop occurred about three minutes after the police received the radio transmission and only about six blocks away from the crime scene (see People v. Ceruti, 133 A.D.3d at 611, 20 N.Y.S.3d 378 ; People v. Castillo, 91 A.D.3d 883, 936 N.Y.S.2d 675 ; People v. Bianchi, 208 A.D.2d at 551–552, 616 N.Y.S.2d 783 ). During the stop, the police were justified in ordering the defendant out of the vehicle (see People v. Robinson, 74 N.Y.2d 773, 774–775, 545 N.Y.S.2d 90, 543 N.E.2d 733 ). The police observed a blue striped shirt and gun in plain view on the floor in the rear of the vehicle and properly seized these items (see People v. Alexander, 161 A.D.3d 762, 763, 76 N.Y.S.3d 577 ; People v. Frazier, 33 A.D.3d 934, 935, 826 N.Y.S.2d 292 ; People v. Diaz, 194 A.D.2d 688, 599 N.Y.S.2d 111 ). The show up identification of the defendant as to the attempted robbery was made after the lawful stop and after only a brief detention (see People v. Hicks, 68 N.Y.2d 234, 241–242, 508 N.Y.S.2d 163, 500 N.E.2d 861 ; People v. Johnson, 104 A.D.3d 705, 705–706, 960 N.Y.S.2d 206 ; People v. Jacob, 94 A.D.3d 1142, 1144, 942 N.Y.S.2d 627 ). Accordingly, we agree with the Supreme Court's determination to deny those branches of the defendant's omnibus motion which were to suppress physical evidence and identification evidence.
The defendant's contention that he was deprived of a fair trial by certain of the prosecutor's comments on summation is unpreserved for appellate review (see CPL 470.05[2] ). In any event, it was permissible for the prosecutor to use her summation to comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Herb, 110 A.D.3d 829, 831, 972 N.Y.S.2d 668 ), to respond to arguments and theories presented in defense counsel's summation (see People v. Gross, 88 A.D.3d 905, 906, 931 N.Y.S.2d 129 ), or to make permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Herb, 110 A.D.3d at 831, 972 N.Y.S.2d 668 ). To the extent that the prosecutor exceeded the bounds of permissible rhetorical comment, any error was harmless (see People v. Torres, 72 A.D.3d 709, 900 N.Y.S.2d 89 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.