Opinion
01-13-2016
The PEOPLE, etc., respondent, v. David HARDMAN, appellant.
Craig S. Leeds, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Lori Glachman, and Joyce Adolfsen of counsel), for respondent.
Craig S. Leeds, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Lori Glachman, and Joyce Adolfsen of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
Appeals by the defendant from three judgments of the Supreme Court, Kings County (Chun, J.), all rendered April 13, 2009, convicting him of criminal sale of a controlled substance in the third degree under Kings County Indictment No. 3888/06, criminal sale of a firearm in the third degree under Kings County Indictment No. 5543/06, and manslaughter in the first degree under Kings County Indictment No. 448/07, respectively, upon his pleas of guilty, and imposing sentences. The appeal from the judgment convicting the defendant of manslaughter in the first degree brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress statements made to law enforcement officials and identification testimony.
ORDERED that the judgments are affirmed.
The defendant's challenge to the factual sufficiency of the plea allocution for manslaughter in the first degree is unpreserved for appellate review, as he failed to move to withdraw the plea under CPL 220.60(3) (see People v. Lopez, 71 N.Y.2d 662, 664, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Contrary to the defendant's contention, the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Tyrell, 22 N.Y.3d 359, 981 N.Y.S.2d 336 ; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371 ). Rather, the defendant's plea colloquy established his guilt on the theory that he acted in concert with his accomplice to commit manslaughter in the first degree.
Also unpreserved for appellate review is the defendant's contention that the hearing court should have suppressed identification testimony based on the People's refusal to provide the name of the confidential witness who identified the defendant from a photographic array (see CPL 470.05[2] ). In any event, this contention is without merit, as the testimony of the detective who caused the computer-generated array to be created and who showed the array to the identifying witness was sufficient to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in the pretrial identification procedure (see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ). The People having thus satisfied their initial burden, the defense bore "the ultimate burden" of proving that the identification was improper (People v. Delamota, 18 N.Y.3d 107, 118, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; see People v. Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ), a burden the defendant failed to satisfy. Accordingly, that branch of the defendant's omnibus motion which was to suppress identification testimony was properly denied.
The defendant further contends that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress three statements he made to the police. We agree with the defendant that the first statement to the police should have been suppressed, on the ground that the People failed to show that the defendant was not subjected to custodial constraint at that time (see People v. Alls, 83 N.Y.2d 94, 102–103, 608 N.Y.S.2d 139, 629 N.E.2d 1018 ), and the defendant was not advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ). However, several hours later, after he was advised of, and waived his Miranda rights, the defendant made a similar videotaped statement. More than two years later, while in police custody for a different crime, the defendant again waived his Miranda rights and made additional statements to the police. The defendant's later statements, including a videotaped statement, were admissible against him, since there was a definite, pronounced break giving the defendant ample time for reflection, which was sufficient to remove any taint of his first statement (see People v. Paulman, 5 N.Y.3d 122, 131, 800 N.Y.S.2d 96, 833 N.E.2d 239 ; People v. Mattis, 45 A.D.3d 869, 870, 847 N.Y.S.2d 117 ; People v. Vachet, 5 A.D.3d 700, 702, 773 N.Y.S.2d 455 ; People v. McIntyre, 138 A.D.2d 634, 637, 526 N.Y.S.2d 217 ).
Accordingly, those branches of the defendant's omnibus motion which were to suppress the two later statements were properly denied. The defendant's first statement to the police should have been suppressed, but it was cumulative of other evidence. Under the circumstances, there is no "reasonable possibility that the error contributed to the plea" (People v. Grant, 45 N.Y.2d 366, 379, 408 N.Y.S.2d 429, 380 N.E.2d 257 ; see People v. Lloyd, 66 N.Y.2d 964, 498 N.Y.S.2d 785, 489 N.E.2d 754 ). Therefore, the failure to suppress the first statement is not grounds to vacate the defendant's plea of guilty to manslaughter in the first degree (see People v. Hardy, 77 A.D.3d 133, 141–142, 907 N.Y.S.2d 244 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by trial counsel's failure to make certain objections or motions that had "little or no chance of success" (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ).
The defendant's remaining contentions are without merit.