Opinion
01-30-2024
The PEOPLE of the State of New York, Respondent, v. David SCOTT, Defendant–Appellant.
Caprice R. Jenerson, Office of Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
Caprice R. Jenerson, Office of Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
Singh, J.P., Kapnick, Kennedy, Higgitt, Michael, JJ.
Judgment, Supreme Court, New York County (Abraham Clott, J.), rendered April 26, 2018, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 12 years, unanimously affirmed.
[1] The court properly denied defendant’s suppression motion. The police had reasonable suspicion to detain defendant, given the victim’s description of the robbers, combined with the overheard "nervous" and "frantic" conversation between two men about having gotten away, and the officers’ subsequent observation of defendant carrying items matching the reported stolen property, which occurred in close spatial proximity to the crime and during the early morning hours (see People v. Cook, 161 A.D.3d 708, 708–709, 78 N.Y.S.3d 314 [1st Dept. 2018], affd 34 N.Y.3d 412, 121 N.Y.S.3d 187, 143 N.E.3d 1065 [2019]; People v. Brujan, 104 A.D.3d 481, 481, 960 N.Y.S.2d 421 [1st Dept. 2013], lv. denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013]). There was a satisfactory explanation for the discrepancy between the victim’s description of what the robbers were wearing and the shirt defendant wore.
[2] The court also properly denied defendant’s motion to suppress the showup identification. The showup was conducted in close geographic and temporal proximity to the crime "as part of an unbroken chain of fast-paced events" (People v. Vincenty, 138 A.D.3d 428, 429, 28 N.Y.S.3d 686 [1st Dept. 2016], lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016]), and the fact that defendant was handcuffed, surrounded by officers, and had a patrol car’s spotlight on him did not render it unduly suggestive (see People v. McNeil, 39 A.D.3d 206, 209, 834 N.Y.S.2d 99 [1st Dept. 2007]; People v. Gatling, 38 A.D.3d 239, 240, 831 N.Y.S.2d 157 [1st Dept. 2007], lv denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007]).
[3] Defendant’s waiver of his right to counsel was knowing and voluntary. Defendant unequivocally informed the court that he wished to waive his right to counsel and proceed pro se (see People v. Silburn, 31 N.Y.3d 144, 150–151, 74 N.Y.S.3d 781, 98 N.E.3d 696 [2018]), notwithstanding his initial request for new counsel. The court conducted the requisite "searching inquiry," which included a discussion of defendant’s background, the charges against him, his sentencing exposure, and the potential disadvantages of self-representation (see People v. Crampe, 17 N.Y.3d 469, 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255 [2011], cert denied 565 U.S. 1261, 132 S.Ct. 1746, 182 L.Ed.2d 531 [2012]; People v. Cole, 120 A.D.3d 72, 75, 987 N.Y.S.2d 373 [1st Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014]).
[4] By failing to object or making only a general objection, defendant failed to preserve his challenges to the prosecutor’s remarks on summation (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006]), and we decline to review them in the interest of justice. As an alternative holding, we find that the remarks were fair comments in response to defendant’s summation or fell within the bounds of permissible rhetorical comment (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]).
We perceive no basis for reducing the sentence.