From Casetext: Smarter Legal Research

People v. Houston

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Nov 20, 2019
177 A.D.3d 902 (N.Y. App. Div. 2019)

Opinion

2012–01989 Ind. No. 2546/06

11-20-2019

The PEOPLE, etc., Respondent, v. Tyrone HOUSTON, Appellant.

Paul Skip Laisure, New York, N.Y. (Mark W. Vorkink of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Jordan Cerruti of counsel), for respondent.


Paul Skip Laisure, New York, N.Y. (Mark W. Vorkink of counsel), for appellant, and appellant pro se.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Jordan Cerruti of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, HECTOR D. LASALLE, JJ.

DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D'Emic, J.), rendered February 8, 2012, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

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. Worrell, 170 A.D.3d 1048, 1050, 96 N.Y.S.3d 269 ; People v. White, 153 A.D.3d 1369, 61 N.Y.S.3d 603 ). The defendant bears the ultimate burden of proving that the evidence should not be used against him (see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ; People v. Worrell, 170 A.D.3d at 1050, 96 N.Y.S.3d 269 ; People v. White, 153 A.D.3d at 1370, 61 N.Y.S.3d 603 ).

At the suppression hearing, the officer who arrested the defendant testified that he observed the defendant in the subway urinating on the platform. The officer approached the defendant, who had finished urinating and had placed his hands in his pockets. As the officer approached, displaying his shield, the defendant began walking toward him with his hands in his pockets. Feeling "uncomfortable," the officer asked the defendant to identify himself and remove his hands from his pockets. The officer then asked the defendant whether he had ever been arrested, and the defendant replied that he was on parole for robbery. The officer, for safety reasons, asked the defendant whether he had "anything on him" that the officer should know about, and the defendant produced a "short knife" from his right pocket and handed it to the officer. The officer then handcuffed the defendant and, upon frisking him, found a larger kitchen knife in a different pocket.

As a threshold matter, we note that the defendant's voluntary relinquishment of the first knife was in response to a police inquiry requiring only a founded suspicion of criminality (see People v. Garcia, 20 N.Y.3d 317, 959 N.Y.S.2d 464, 983 N.E.2d 259 ; People v. Simmons, 79 A.D.3d 431, 432, 912 N.Y.S.2d 48 ; People v. Joseph, 38 A.D.3d 403, 404, 834 N.Y.S.2d 93 ) or a reasonable fear for the officer's safety (see People v. Correa, 77 A.D.3d 555, 909 N.Y.S.2d 69 ; People v. Stevenson, 7 A.D.3d 820, 821, 779 N.Y.S.2d 498 ), and the defendant does not challenge the lawfulness of that inquiry on appeal. Thus, the only question before us is whether the officer's testimony was credible.

The credibility determinations of a hearing court following a suppression hearing are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v. Guzman, 175 A.D.3d 564, 104 N.Y.S.3d 912 ; People v. Hobson, 111 A.D.3d 958, 959, 975 N.Y.S.2d 682 ). Here, we do not find that inconsistencies between the arresting officer's testimony and his underlying paperwork were of such magnitude as to render his testimony incredible or unreliable (see People v. Bessard, 80 A.D.3d 773, 774, 915 N.Y.S.2d 861 ). Thus, we see no reason to disturb the hearing court's credibility findings.

Since the defendant voluntarily relinquished the first knife (see People v. Ortiz, 87 A.D.3d 602, 603, 927 N.Y.S.2d 920 ), and the second knife was subsequently recovered during a lawful search incident to an arrest (see Matter of Jamal S., 28 N.Y.3d 92, 97, 65 N.E.3d 46 ; People v. Burris, 164 A.D.3d 821, 823, 83 N.Y.S.3d 143 ), we agree with the hearing court's determination denying that branch of the defendant's omnibus motion which was to suppress the knives.

The defendant further contends, in his pro se supplemental brief, that his counsel was ineffective for failing to make a speedy trial motion. To the extent this contention can be construed as relating to the plea bargaining process, so as to survive the guilty plea (see People v. Nugent, 109 A.D.3d 625, 626, 970 N.Y.S.2d 634 ), it cannot be reviewed because the defendant has failed to provide a record sufficient to determine the merits of the underlying speedy trial claim (see People v. Thomas, 46 A.D.3d 712, 712–713, 848 N.Y.S.2d 239 ; see also People v. Chander, 140 A.D.3d 1181, 1183, 34 N.Y.S.3d 492 ; People v. Adamson, 131 A.D.3d 701, 703, 15 N.Y.S.3d 452 ).

The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.

BALKIN, J.P., CHAMBERS, LEVENTHAL and LASALLE, JJ., concur.


Summaries of

People v. Houston

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Nov 20, 2019
177 A.D.3d 902 (N.Y. App. Div. 2019)
Case details for

People v. Houston

Case Details

Full title:The People of the State of New York, respondent, v. Tyrone Houston…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Nov 20, 2019

Citations

177 A.D.3d 902 (N.Y. App. Div. 2019)
110 N.Y.S.3d 578
2019 N.Y. Slip Op. 8425

Citing Cases

People v. Julien

Here, contrary to the defendant's contention, the record does not compel a conclusion that the arresting…

People v. Julien

People v Harris, 192 A.D.3d at 164-165). Under the circumstances, we see no reason to disturb the Supreme…