Summary
In People v Scott (197 AD2d 550), the police were in hot pursuit of armed bank robbery suspects pursuant to a radio dispatch.
Summary of this case from People v. CamberOpinion
October 4, 1993
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is affirmed.
On December 7, 1988, Housing Police Officers Charles Ferris and Edward Rosado received a radio communication informing them that police officers from the 78th Precinct in Brooklyn were in hot pursuit of a red Honda motor vehicle which was occupied by four black males who had perpetrated an armed bank robbery in the area. The radio communication further informed the officers that the red Honda was traveling down Second Avenue towards a large post-office/supermarket complex. As Officers Ferris and Rosado neared the complex, they observed the 78th Precinct vehicle drive past, but the red Honda was nowhere in sight. Ferris and Rosado thereupon drove into the parking lot of the post-office facility, which was immediately adjacent to the supermarket parking lot and separated therefrom by a 10 to 15 foot tall chainlink fence.
Ferris and Rosado, in their police vehicle, commenced a search of the postal facility's loading dock area because, in the words of Officer Ferris, "there's a lot of trailers there to unload mail that a car could hide behind". As this search was being conducted, a postal employee asked if they "were looking for a male black". Upon their affirmative response, the postal employee pointed down an alley where the officers observed the defendant, a black male, running for the fence. The officers drove down the alley and, as the defendant was climbing the fence, they alighted from the police vehicle, with weapons drawn, and ordered him to "stop, not to move". The officers thereupon asked the defendant "where he was going", to which he replied that "he was going shopping". The defendant was then ordered off the fence.
While descending the fence, Ferris grabbed the defendant and felt a hard object in his waistband which the officer subsequently determined was a two-way radio. A search produced a sheet of paper on which were written various radio frequencies and corresponding police precincts.
Given the information contained in the radio transmission and the defendant's attempt to flee the postal facility by scaling the tall fence, we conclude that the police acted properly in drawing their weapons and ordering the defendant off the fence (see, People v. Allen, 73 N.Y.2d 378; People v. Castro, 53 N.Y.2d 1046; People v. Chestnut, 51 N.Y.2d 14, cert denied 449 U.S. 1018). Nor was it unreasonable for Ferris, upon feeling a hard object, to retrieve it from the defendant's waistband (see, People v. Woods, 64 N.Y.2d 736, 737). Moreover, the defendant's insufficient response to the officers' inquiry and the officers' subsequent recovery of the two-way radio after the initial stop provided probable cause to arrest the defendant and search him (People v. Hollman, 79 N.Y.2d 181, 185; People v. Hunter, 30 N.Y.2d 774; cf., People v. Holmes, 81 N.Y.2d 1056; People v. Bronston, 68 N.Y.2d 880). In any event, the defendant's subsequent confession was sufficiently attenuated from any illegal arrest (see, People v. Conyers, 68 N.Y.2d 982).
In addition, we reject the defendant's contention that he was denied the effective assistance of counsel. True ineffectiveness of counsel should not be confused with an unsuccessful trial strategy. Indeed, absent evidence that defense counsel's performance rendered his representation of the defendant less than meaningful, we decline to accord undue significance to the defendant's hindsight analysis of matters of strategic import (see, People v. Garcia, 75 N.Y.2d 973; People v. Rivera, 71 N.Y.2d 705; People v. Baldi, 54 N.Y.2d 137).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245), or without merit (see, People v. Canty, 60 N.Y.2d 830; People v Taylor, 155 A.D.2d 630). Lawrence, J.P., O'Brien, Copertino and Santucci, JJ., concur.