Opinion
12-08-2016
The PEOPLE of the State of New York, Respondent, v. Jhaffre McCLAIN, Appellant.
Aaron A. Louridas, Delmar, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Aaron A. Louridas, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: PETERS, P.J., GARRY, EGAN JR., ROSE and MULVEY, JJ.
PETERS, P.J.Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 24, 2014, convicting defendant upon his plea of guilty of the crimes of robbery in the first degree (two counts) and robbery in the second degree.
On the evening of July 11, 2013, City of Albany Police Officer Anthony Scalise and his partner responded to a radio dispatch of an armed robbery at a club in the City of Albany. The suspects were described as five or six black males wearing dark clothing and masks. Upon the officer's arrival, several victims informed them that the perpetrators had just fled on foot through the parking lot of a nearby restaurant. After conducting a quick search of the surrounding area, Scalise and his partner returned to the scene of the crime where they obtained additional information from the victims, including that one of the perpetrators had stolen a backpack and that another was wearing a baseball cap bearing a Detroit Lions insignia. While speaking with the victims, Scalise received a radio transmission indicating that gunshots had been fired at a location a few blocks away and that two males wearing dark clothing and carrying a backpack had been observed running through backyards. Scalise immediately responded to the location of the reported gunfire and, while canvassing alleyways and backyards for the fleeing suspects, he was directed by a bystander to an alleyway. Upon entering the alley, Scalise observed a black Detroit Lions baseball cap similar to the one described by the victims of the armed robbery lying in the grass. He and another officer then continued down the alley to an adjacent yard where they came upon two males, one of whom was later identified as defendant. Both men had scratches on their arms, were "sweating profusely and out of breath, " and one of the men had blood on his shirt. The two were then ordered to the ground, handcuffed and held at the scene while Scalise returned to the location of the armed robbery to speak further with the victims. There, Scalise viewed surveillance video capturing the robbery and identified defendant, who was wearing a Detroit Lions baseball cap, as one of the armed robbers. Defendant and the other individual were thereafter arrested and transported to the police station, where one of the victims of the robbery identified defendant from a photo array as one of the assailants.
Defendant and four others were subsequently charged with two counts of robbery in the first degree and one count of robbery in the second degree. Following a combined Dunaway/Wade/Mapp/Huntley hearing, County Court denied defendant's motion to suppress both the physical evidence recovered from his person and the pretrial identification of him. Defendant thereafter pleaded guilty as charged and was sentenced to an aggregate prison term of 11 ½ years followed by five years of postrelease supervision. He now appeals, challenging County Court's denial of his suppression motion.
We reject defendant's contention that the evidence obtained by the police was the product of an illegal detention. "Street encounters initiated by police are governed by the well-established graduated four-level test in which, generally stated, the level of permissible intrusion increases with the level of evidence of criminality. These encounters can be ‘dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize ... additional action as the scenario unfolds' " (People v. Tillery, 60 A.D.3d 1203, 1204–1205, 875 N.Y.S.2d 343 [2009] [internal citations omitted], lv. denied 12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009], quoting People v. De Bour, 40 N.Y.2d 210, 225, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; accord People v. Issac, 107 A.D.3d 1055, 1057, 968 N.Y.S.2d 631 [2013] ). In evaluating the conduct of the police, "we accord great weight to the credibility determinations made by the suppression court, given its peculiar advantage of having seen and heard the witnesses" (People v. Issac, 107 A.D.3d at 1057, 968 N.Y.S.2d 631 ; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).
Here, moments after responding to the scene of the armed robbery, police received a report of shots fired in an area just blocks away, observed two men fleeing and were directed by several bystanders to a location where defendant was discovered. "Where, as here, police officers find themselves in a rapidly developing and dangerous situation presenting an imminent threat to their well-being, they must be permitted to take reasonable measures" (People v. Allen, 73 N.Y.2d 378, 380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989] [citation omitted]; accord People v. Stroman, 107 A.D.3d 1023, 1024, 967 N.Y.S.2d 202 [2013], lv. denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] ). Given defendant's geographical and temporal proximity to both the scene of the armed robbery and the area where shots were fired, the presence of the baseball cap matching the one reportedly worn by one of the perpetrators and defendant's physical appearance upon being approached by the officers, we find that the police possessed reasonable suspicion that defendant had committed a crime and were therefore authorized to forcibly stop, frisk and detain him (see People v. Ford, 110 A.D.3d 1368, 1371, 973 N.Y.S.2d 859 [2013], lv. denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; People v. Robinson, 101 A.D.3d 1245, 1245–1246, 956 N.Y.S.2d 239 [2012], lv. denied 20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537 [2013] ; People v. Robinson, 95 A.D.3d 906, 906, 942 N.Y.S.2d 888 [2012], lv. denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012] ). Once Scalise returned to the location of the robbery, viewed surveillance of the incident and determined that defendant was one of the assailants, probable cause existed for his arrest (see People v. Stroman, 107 A.D.3d at 1024, 967 N.Y.S.2d 202 ; People v. Rose, 72 A.D.3d 1341, 1345, 899 N.Y.S.2d 414 [2010], lv. denied 16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011] ).
Nor are we persuaded that defendant's identification as one of the assailants was the result of an impermissibly suggestive police-arranged showup. Accidental showups that result from mere happenstance do not implicate due process concerns, so long as the spontaneous encounter was not caused by police misconduct or questionable police procedures (see People v. Dixon, 85 N.Y.2d 218, 223, 623 N.Y.S.2d 813, 647 N.E.2d 1321 [1995] ; People v. Newball, 76 N.Y.2d 587, 591, 561 N.Y.S.2d 898, 563 N.E.2d 269 [1990] ). While being led up a flight of stairs at the police station, one of the victims of the robbery saw defendant, who was in civilian clothes and handcuffs, down a hallway approximately 30 feet away. Shortly thereafter, this witness identified defendant from a photo array as one of the armed robbers, and remarked, "He's the same guy I saw in the hallway as we came up the stairs." Upon our review of the record, we find no basis upon which to disturb County Court's determination that the station house encounter between defendant and one of the victims was accidental, spontaneous and not the product of police misconduct or questionable police procedures (see People v. Brown, 123 A.D.3d 938, 939, 999 N.Y.S.2d 436 [2014], lv. denied 25 N.Y.3d 949, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ; People v. Rodriguez, 98 A.D.3d 530, 531–532, 949 N.Y.S.2d 441 [2012], lvs. denied 19 N.Y.3d 1105, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012], 20 N.Y.3d 935, 957 N.Y.S.2d 695, 981 N.E.2d 292 [2012] ; People v. Gomez, 60 A.D.3d 782, 783, 874 N.Y.S.2d 582 [2009], lv. denied 12 N.Y.3d 845, 881 N.Y.S.2d 665, 909 N.E.2d 588 [2009] ; People v. Nimmons, 177 A.D.2d 444, 445, 576 N.Y.S.2d 540 [1991], lv. denied 79 N.Y.2d 922, 582 N.Y.S.2d 82, 590 N.E.2d 1210 [1992] ).
Defendant's remaining contentions, raised in his supplemental pro se brief, are unpreserved for our review.
ORDERED that the judgment is affirmed.
GARRY, EGAN JR., ROSE and MULVEY, JJ., concur.