Opinion
9080 Ind. 2932/11
04-23-2019
The PEOPLE of the State of New York, Respondent, v. Ismael SUAREZ, Defendant–Appellant.
Justine M. Luongo, The Legal Aid Society, New York (Lawrence T. Hausman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Justine M. Luongo, The Legal Aid Society, New York (Lawrence T. Hausman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Renwick, J.P., Gische, Webber, Singh, JJ.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered December 9, 2011, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 ½ to 5 years, unanimously affirmed.
The court properly admitted a wanted poster, which contained still photographs from a surveillance video, as background information that completed the narrative of the events leading up to defendant's apprehension (see People v. Rivera, 96 N.Y.2d 749, 751, 725 N.Y.S.2d 264, 748 N.E.2d 1060 [2001] ; People v. Martinez, 95 A.D.3d 462, 943 N.Y.S.2d 95 [1st Dept. 2012], lv. denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ). However, the court improvidently exercised its discretion in refusing to redact the written description of the suspect also contained on the wanted poster (cf. id. at 462, 943 N.Y.S.2d 95 ). Such error was harmless, however, as the arresting officer testified that he recognized defendant based on the still photograph rather than the written description.
The court properly admitted a photograph of defendant from a prior arrest, depicting him wearing a distinctive jacket that matched the jacket worn by the suspect in the surveillance video, without granting defendant's unelaborated request for a hearing as to whether the prior arrest was lawful. "Hearings are not automatic or generally available for the asking" ( People v. Mendoza, 82 N.Y.2d 415, 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ). There was no information before the trial court to suggest that the prior arrest might have been unlawful; instead, the only information available was that defendant had pleaded guilty in the prior case without litigating any suppression issues. A police witness's brief, nonspecific reference to receipt of a "jacket," where defendant's jacket had been suppressed, did not warrant the drastic remedy of a mistrial. Instead, the court granted the alternative remedy requested by defendant after the mistrial was denied, and this was sufficient to prevent any prejudice.