Opinion
838.1 KA 12–01596
06-29-2018
The PEOPLE of the State of New York, Respondent, v. Darrell HOFFMAN, also known as Durrell, Defendant–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court for a hearing pursuant to People v. Rodriguez, 79 N.Y.2d 445, 451–453, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992) to determine whether "Witness # 1" was sufficiently familiar with defendant in order to render the single photo identification of defendant by that witness "truly confirmatory in nature" ( People v. Hoffman, 140 A.D.3d 1604, 1605, 34 N.Y.S.3d 546 [4th Dept. 2016] ). We conclude that the court properly determined upon remittal that such a hearing was unnecessary inasmuch as defense counsel advised the court that "Witness # 1" is the brother of defendant, thereby rendering his identification of defendant merely confirmatory (see generally People v. Rodriguez, 47 A.D.3d 417, 417, 849 N.Y.S.2d 232 [1st Dept. 2008], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ). We reject defendant's contention that the court was required to obtain the waiver of such hearing directly from him. "[A] defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client," such as "deciding whether to plead guilty, whether to waive a jury, whether to testify at trial, and whether to take an appeal" ( People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ). "With respect to strategic and tactical decisions concerning the conduct of trials, by contrast, defendants are deemed to repose decision-making authority in their lawyers" ( People v. Colon, 90 N.Y.2d 824, 826, 660 N.Y.S.2d 377, 682 N.E.2d 978 [1997] ). "By accepting counseled representation, a defendant assigns control of much of the case to the lawyer, who, by reason of training and experience, is entrusted with sifting out weak arguments, charting strategy and making day-to-day decisions over the course of the proceedings" ( People v. Rodriguez, 95 N.Y.2d 497, 501–502, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000] ).
Here, defense counsel's decision to forego a Rodriguez hearing as superfluous "is precisely the type of day-to-day decision making over which an attorney, in his or her professional judgment, retains sole authority" ( People v. Parker, 290 A.D.2d 650, 651, 736 N.Y.S.2d 162 [3d Dept. 2002], lv denied 97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366 [2002], reconsideration denied 98 N.Y.2d 679, 746 N.Y.S.2d 469, 774 N.E.2d 234 [2002] ; see Colon, 90 N.Y.2d at 825–826, 660 N.Y.S.2d 377, 682 N.E.2d 978 ; Ferguson, 67 N.Y.2d at 390–391, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; People v. Trepasso, 197 A.D.2d 891, 891, 602 N.Y.S.2d 291 [4th Dept. 1993], lv denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 527 [1993] ). Furthermore, in making his decision to waive the hearing, defense counsel stated that he had "discussed this with [defendant]." Although defendant was present, he did not protest defense counsel's decision. There is thus "no indication in the record that defense counsel's position differed from that of" defendant ( People v. Gottsche, 118 A.D.3d 1303, 1304, 987 N.Y.S.2d 736 [4th Dept. 2014], lv denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] ; see People v. Hartle, 122 A.D.3d 1290, 1292, 995 N.Y.S.2d 424 [4th Dept. 2014], lv denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] ).
We reject defendant's contention that the court erred in refusing to suppress identifications made by "Witness # 2" and a codefendant on the ground that the photo array was unduly suggestive. "A photo array is unduly suggestive where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection" ( People v. Smiley, 49 A.D.3d 1299, 1300, 856 N.Y.S.2d 321 [4th Dept. 2008], lv denied 10 N.Y.3d 870, 860 N.Y.S.2d 496, 890 N.E.2d 259 [2008] [internal quotation marks omitted] ). Here, the photographs in the array depict African–American males of similar age, with similar hairstyles, clothing, and physical features. Furthermore, all of the photographs are roughly the same size. Thus, "[t]he subjects depicted in the array were sufficiently similar in appearance so that the viewer's eye was not drawn to a particular photo in such a way as to indicate that the police were urging a particular selection" ( People v. Alston, 101 A.D.3d 1672, 1673, 956 N.Y.S.2d 757 [4th Dept. 2012] [internal quotation marks omitted] ). The court therefore properly determined that "the People met their initial burden of establishing that the police conduct with respect to the photo array procedure was reasonable and that defendant failed to meet his ultimate burden of proving that the photo array was unduly suggestive" ( id. ). "Nor was there any evidence at the Wade hearing indicating that the identification procedures [otherwise] employed by the police were unduly suggestive" ( People v. Linder, 114 A.D.3d 1200, 1201, 979 N.Y.S.2d 754 [4th Dept. 2014], lv denied 23 N.Y.3d 1022, 992 N.Y.S.2d 805, 16 N.E.3d 1285 [2014] ).
We reject defendant's further contention that the People failed to establish that his statements were freely and voluntarily given. At the hybrid Huntley /Wade hearing, the People presented evidence that defendant's handcuffs were removed immediately at the outset of the interrogation and that defendant could read and write. Defendant was read his Mirandarights verbatim from a Miranda warnings card and, after being read those rights, defendant did not request an attorney or that those rights be further explained. Thereafter, defendant agreed to speak to the officers and waive his rights. Thus, "[t]he record of the suppression hearing supports the court's determination that the waiver by defendant of his Miranda rights was knowing, voluntary and intelligent" ( People v. Marvin, 68 A.D.3d 1729, 1729, 891 N.Y.S.2d 824 [4th Dept. 2009], lv denied 14 N.Y.3d 842, 901 N.Y.S.2d 149, 927 N.E.2d 570 [2010] ).
In his supplemental brief, defendant contends that he was deprived of effective assistance of counsel because defense counsel waived the Rodriguez hearing. Defendant failed, however, to " ‘demonstrate the absence of strategic or other legitimate explanations for counsel's failure to request [that] hearing. Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing a hearing’ " ( People v. Parker, 148 A.D.3d 1583, 1584, 50 N.Y.S.3d 211 [4th Dept. 2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Defendant also contends that he was deprived of effective assistance of counsel because defense counsel did not expressly state that he sought suppression of defendant's statements based on a lack of probable cause to arrest him. Defendant relies, however, upon matters outside the record in contending that he had a "colorable" claim to suppress those statements on the ground that he was arrested without probable cause. Thus, that contention "must be raised by way of a motion pursuant to CPL article 440" ( People v. Edwards, 151 A.D.3d 1832, 1833, 57 N.Y.S.3d 817 [4th Dept. 2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 132, 89 N.E.3d 522 [2017] ).
Finally, we conclude that defendant's sentence is not unduly harsh or severe.