Opinion
996 KA 16-00354
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Delbert M. CLARK, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). Evidence at a suppression hearing established that a police officer stopped a vehicle driven by defendant because, inter alia, it had no front license plate and had darkly tinted windows. When asked for his driver's license and registration, defendant produced the registration but not his license. The officer then requested that defendant exit the vehicle. Moments later, while the officer was speaking with defendant, defendant fled the scene. The officer pursued defendant, who discarded a firearm as he fled, and the officer ended his pursuit in order to secure the weapon. Approximately 15 to 18 minutes later, the officer went to another address, where a showup identification procedure was performed with a possible suspect who had been apprehended by other officers. The officer identified the suspect as defendant.
As an initial matter, we agree with defendant that he did not validly waive his right to appeal because Supreme Court's oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of the waiver and failed to identify that certain rights would survive the waiver (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Crogan , 181 A.D.3d 1212, 1212-1213, 118 N.Y.S.3d 484 [4th Dept. 2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 [2020] ).
We reject defendant's contention, however, that the court erred in refusing to suppress the identification of defendant made by the police officer who performed the traffic stop. Although the People contend that the police officer made a " ‘confirmatory identification’ " that "as a matter of law ... could not be the product of undue suggestiveness" ( People v. Boyer , 6 N.Y.3d 427, 431, 813 N.Y.S.2d 31, 846 N.E.2d 461 [2006] ), we are precluded from affirming on that basis because the court did not rule on that issue (see CPL 470.15 [1] ; People v. Davis , 159 A.D.3d 1531, 1533-1534, 73 N.Y.S.3d 711 [4th Dept. 2018] ). Nevertheless, applying the rule applicable to showup identification procedures generally, we reject defendant's contention that the identification was unduly suggestive (see generally People v. Johnson , 164 A.D.3d 1593, 1594, 84 N.Y.S.3d 281 [4th Dept. 2018], lv denied 32 N.Y.3d 1173, 97 N.Y.S.3d 581, 121 N.E.3d 208 [2019] ; People v. Bassett , 112 A.D.3d 1321, 1322, 977 N.Y.S.2d 517 [4th Dept. 2013], lv denied 23 N.Y.3d 960, 988 N.Y.S.2d 567, 11 N.E.3d 717 [2014] ).
Defendant's additional contention that he was denied effective assistance of counsel survives his guilty plea only insofar as he demonstrates that "the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney[’s] allegedly poor performance" ( People v. Rausch , 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] [internal quotation marks omitted]). To the extent that defendant contends that his plea was infected by the allegedly ineffective assistance of counsel, we reject defendant's contention that defense counsel's failure to move to suppress the firearm constituted ineffective assistance. "There can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to ‘make a motion or argument that has little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; see People v. Patterson , 115 A.D.3d 1174, 1175-1176, 982 N.Y.S.2d 234 [4th Dept. 2014], lv denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 [2014] ; People v. Marcial , 41 A.D.3d 1308, 1308, 837 N.Y.S.2d 815 [4th Dept. 2007], lv denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757 [2007] ). On appeal, defendant does not contest the legality of the initial traffic stop, and instead contends that defense counsel was ineffective for failing to seek suppression of the firearm on the ground that the officer was not entitled to direct him to stand at the rear of the stopped vehicle, that the officer was not entitled to pursue him when he fled, and that the firearm was recovered as a result of that purportedly impermissible police conduct. Seeking suppression on that ground had little or no chance of success, however, because the officer was entitled, as part of the traffic stop, to request defendant's license and registration (see People v. McCarley , 55 A.D.3d 1396, 1396, 865 N.Y.S.2d 459 [4th Dept. 2008], lv denied 11 N.Y.3d 899, 873 N.Y.S.2d 275, 901 N.E.2d 769 [2008] ). Defendant's "failure, upon demand by the officer, to produce a driver's license was presumptive evidence that he was not duly licensed," and "[d]riving without a license is a traffic offense which justifies a police officer's immediate arrest of the unlicensed operator" ( People v. Watson , 177 A.D.2d 676, 676, 576 N.Y.S.2d 370 [2d Dept. 1991], lv denied 79 N.Y.2d 954, 583 N.Y.S.2d 208, 592 N.E.2d 816 [1992] ; see People v. Howard , 19 A.D.3d 1073, 1074, 796 N.Y.S.2d 212 [4th Dept. 2005], lv denied 5 N.Y.3d 853, 806 N.Y.S.2d 173, 840 N.E.2d 142 [2005] ; People v. Clark , 227 A.D.2d 983, 984, 643 N.Y.S.2d 836 [4th Dept. 1996] ; see also Vehicle and Traffic Law § 507 [2] ). Additionally, defendant's flight from the traffic stop, "leaving his automobile behind prior to being issued a traffic summons, [further] justified the officers’ pursuit" ( People v. Frank , 161 A.D.2d 794, 795, 556 N.Y.S.2d 368 [2d Dept. 1990], lv denied 76 N.Y.2d 939, 563 N.Y.S.2d 69, 564 N.E.2d 679 [1990] ), and " ‘the recovery of the gun discarded during [defendant's] flight was lawful inasmuch as the officer's pursuit ... of defendant [was] lawful’ " ( People v. Thacker , 156 A.D.3d 1482, 1483, 68 N.Y.S.3d 601 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ).