Opinion
1018, 1018A
May 1, 2003.
Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered April 1, 1996, convicting defendant, after a jury trial, of conspiracy in the second degree, of criminal sale of a controlled substance in the first degree, and three counts of criminal possession of a controlled substance in the first degree, and sentencing him to an aggregate term of 40 years to life, and order, same court and Justice, entered on or about July 31, 2000, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, unanimously affirmed.
Patricia Curran, for respondent.
Jesse M. Siegel, for defendant-appellant.
Before: Saxe, J.P., Ellerin, Williams, Lerner, Marlow, JJ.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record ( see People v. Prochilo, 41 N.Y.2d 759, 761). Exigent circumstances clearly justified a warrantless entry into defendant's house for the purpose of arresting him ( see People v. Glia, 226 A.D.2d 66, 72, appeal dismissed 91 N.Y.2d 846; People v. Cruz, 149 A.D.2d 151, 160). Upon defendant's lawful arrest, the police properly conducted a limited protective sweep of defendant's house to determine if there were any individuals present who might destroy evidence or pose a threat to the officers ( see Maryland v. Buie, 494 U.S. 325). The need for a security sweep of the house was not diminished by the fact that defendant was arrested in his backyard ( see United States v. Oguns, 921 F.2d 442, 446-447; United States v. Agapito, 620 F.2d 324, 336 N.Y.2d 18, cert denied 449 U.S. 834). Among the many factors justifying entry into the house were that this drug conspiracy was known to have many participants, that the house had windows from which shots could be fired at the police who were in the backyard, and that defendant's stepdaughter told the police that someone was hiding in an upstairs closet. The police properly seized briefcases and a safe that were in plain view since their incriminating nature, under the circumstances of this case, was readily apparent to the officers ( see Horton v. California, 496 U.S. 128, 136-137). We have considered and rejected defendant's remaining suppression arguments.
The totality of the record establishes that defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668). The actions of trial counsel that defendant challenges as deficient generally constituted reasonable strategic choices, given that the evidence of defendant's guilt was so overwhelming ( cf. People v. DeFreitas, 213 A.D.2d 96, 101, lv denied 86 N.Y.2d 872). Although counsel's strategy was unconventional, and ultimately unsuccessful, his performance did not deprive defendant of a fair trial ( see People v. Sullivan, 153 A.D.2d 223, lv denied 75 N.Y.2d 925).
Defendant's remaining claims, including those made pursuant to Brady v. Maryland ( 373 U.S. 83) and Massiah v. United States ( 377 U.S. 201) are based on his speculative and unsupported assertion that a codefendant who had been an informant in the past was cooperating with the prosecution in this case, and are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.