Opinion
No. 925 KA 21-00823
12-20-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. WILBERTO MELENDEZ ORTEGA, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AERON SCHWALLIE OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AERON SCHWALLIE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, GREENWOOD, NOWAK, AND KEANE, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered September 22, 2020. The judgment convicted defendant upon a jury verdict of robbery in the first degree and robbery in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [3]) and robbery in the second degree (§ 160.10 [1]). Defendant's conviction arises from a robbery of a convenience store by defendant and a codefendant who forcibly stole money from the convenience store clerk while using or threatening the immediate use of knives.
Defendant contends that Supreme Court erred in denying that part of his omnibus motion seeking to suppress identification testimony from the convenience store clerk. Defendant contends that the showup was unnecessary because the police had enough confirmation that defendant was one of the two perpetrators and thus there was no urgency or exigent circumstances to justify the showup identification. Defendant further contends that the requirements of temporal and spatial proximity were not met inasmuch as the showup took place an hour after the crime at a location approximately two miles from the scene of the crime.
"Showup identifications are disfavored, since they are suggestive by their very nature" (People v Ortiz, 90 N.Y.2d 533, 537 [1997]; see People v Johnson, 81 N.Y.2d 828, 831 [1993]). Although such procedures "are not presumptively infirm" (People v Duuvon, 77 N.Y.2d 541, 543 [1991]), the court must determine whether the showup was" 'reasonable under the circumstances-i.e., justified by exigency or temporal and spatial proximity [to the crime]-and, if so, whether the showup as conducted was unduly suggestive'" (People v Cedeno, 27 N.Y.3d 110, 123 [2016], cert denied 580 U.S. 873 [2016]; see People v Gilford, 16 N.Y.3d 864, 868 [2011]; People v Knox, 170 A.D.3d 1648, 1649 [4th Dept 2019]).
Defendant's contention that the showup procedure was not done in temporal and spatial proximity to the crime is preserved for our review inasmuch as the court expressly decided that question in its decision (see People v Johnson, 192 A.D.3d 1612, 1613 [4th Dept 2021]). Defendant's contention, however, that the showup identification was unnecessary and not supported by exigent circumstances is not preserved for our review (see People v Cruz, 236 A.D.2d 269, 270 [1st Dept 1997], lv denied 89 N.Y.2d 1091 [1997]; see generally Johnson, 192 A.D.3d at 1613; People v Walker, 155 A.D.3d 1685, 1686 [4th Dept 2017], lv denied 30 N.Y.3d 1109 [2018]). In any event, contrary to defendant's contention, "a showup is not improper merely because the police already have probable cause to detain a suspect" (People v Howard, 22 N.Y.3d 388, 403 [2013]). In addition, the court properly determined that the showup procedure was reasonable under the circumstances inasmuch as it was conducted in geographic and temporal proximity to the crime (see People v Smith, 185 A.D.3d 1203, 1207 [3d Dept 2020]; People v Harris, 57 A.D.3d 1427, 1428 [4th Dept 2008], lv denied 12 N.Y.3d 817 [2009]; People v Ramos, 34 A.D.3d 1363, 1363 [4th Dept 2006], lv denied 8 N.Y.3d 884 [2007]), and thus it was permissible even in the absence of exigent circumstances (see People v Ball, 57 A.D.3d 1444, 1445 [4th Dept 2008], lv denied 12 N.Y.3d 755 [2009]; People v Hampton, 50 A.D.3d 1605, 1606 [4th Dept 2008], lv denied 10 N.Y.3d 959 [2008]). Moreover, even assuming, arguendo, that the showup identification should have been suppressed, we conclude that any error in admitting the clerk's in-court identification of defendant is harmless beyond a reasonable doubt (see People v Waggoner, 218 A.D.3d 1221, 1223-1224 [4th Dept 2023], lv denied 40 N.Y.3d 1082 [2023], reconsideration denied 41 N.Y.3d 967 [2024]; People v Bynum, 125 A.D.3d 1278, 1278 [4th Dept 2015], lv denied 26 N.Y.3d 927 [2015]).
We reject defendant's further contention that he was denied effective assistance of counsel. Defense counsel's failure to make a closing argument at the suppression hearing does not constitute ineffective assistance inasmuch as any such argument would have had little or no chance of success (see People v Perkins, 160 A.D.3d 1455, 1457 [4th Dept 2018], lv denied 31 N.Y.3d 1151 [2018]; People v Rodriguez, 134 A.D.3d 512, 513 [1st Dept 2015], lv denied 27 N.Y.3d 968 [2016]). Similarly, defense counsel's failure to request a probable cause hearing does not constitute ineffective assistance. Although defendant would have likely received such a hearing if it was requested because the codefendant had received a probable cause hearing, suppression of the evidence based on an alleged lack of probable cause also would have had little or no chance of success (see People v Burgess, 159 A.D.3d 1384, 1385 [4th Dept 2018], lv denied 31 N.Y.3d 1115 [2018]; see also People v Crouch, 70 A.D.3d 1369, 1370 [4th Dept 2010], lv denied 15 N.Y.3d 773 [2010]).
Defendant has failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's brief questioning of prospective jurors during voir dire and his failure to challenge one prospective juror for cause (see People v Weeks, 221 A.D.3d 1469, 1470-1471 [4th Dept 2023], lv denied 41 N.Y.3d 944 [2024]; see generally People v Thompson, 21 N.Y.3d 555, 559-560 [2013]; People v Benevento, 91 N.Y.2d 708, 712 [1998]). In addition, "the record does not reflect that counsel's decision to allow a previously rejected prospective juror to serve as an alternate fell below the standard for effective assistance" (People v Molano, 70 A.D.3d 1172, 1176 [3d Dept 2010], lv denied 15 N.Y.3d 776 [2010]). Defendant also failed to demonstrate the absence of a legitimate or strategic reason for defense counsel's failure to request a charge on the defense of intoxication, especially in light of defendant's testimony that he did not commit the crimes charged (see People v Lancaster, 143 A.D.3d 1046, 1051-1052 [3d Dept 2016], lv denied 28 N.Y.3d 1147 [2017], reconsideration denied 29 N.Y.3d 999 [2017]; see generally People v Bailey, 195 A.D.3d 1486, 1488 [4th Dept 2021], lv denied 37 N.Y.3d 990 [2021]). We have examined defendant's remaining allegations of ineffective assistance of counsel and conclude that they lack merit. Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of representation, we conclude that defense counsel provided meaningful representation (see generally People v Baldi, 54 N.Y.2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that, in sentencing him, the court penalized him for exercising his right to a trial (see People v Hurley, 75 N.Y.2d 887, 888 [1990]; People v Britton, 213 A.D.3d 1326, 1328 [4th Dept 2023], lv denied 39 N.Y.3d 1140 [2023]). In any event, his contention is without merit (see People v Garner, 136 A.D.3d 1374, 1374-1375 [4th Dept 2016], lv denied 27 N.Y.3d 997 [2016]). The sentence is not unduly harsh or severe.