Opinion
2014-00111, Ind. No. 10599/11.
04-05-2017
The PEOPLE, etc., respondent, v. Benzie JOHNSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cyrulnik, J.), rendered December 16, 2013, convicting him of burglary in the first degree (three counts), robbery in the first degree (six counts), criminal possession of a weapon in the second degree (two counts), assault in the second degree, sexual abuse in the first degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and sentencing him to (1) concurrent determinate terms of imprisonment of 17 years followed by 5 years of postrelease supervision on each conviction of burglary in the first degree and robbery in the first degree, a concurrent determinate term of imprisonment of 4 years followed by 3 years of postrelease supervision on the conviction of assault in the second degree, and a concurrent definite term of imprisonment of 1 year on the conviction of criminal possession of stolen property in the fifth degree, (2) determinate terms of imprisonment of 7 years followed by 5 years of postrelease supervision on each conviction of criminal possession of a weapon in the second degree, to run concurrently with each other and consecutively to the other sentences, and (3) a determinate term of imprisonment of 7 years followed by 5 years of postrelease supervision on the conviction of sexual abuse in the first degree, to run consecutively to the other sentences. The appeal brings up for review the denial, after a hearing (Gary, J.), of those branches of the defendant's omnibus motion which were to suppress identification testimony, physical evidence, and his statements to law enforcement officials.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentences imposed on the convictions of criminal possession of a weapon in the second degree shall run concurrently with all other sentences; as so modified, the judgment is affirmed.
A police officer who reasonably suspects an individual has committed, is committing, or is about to commit a felony or misdemeanor may stop and briefly detain that individual for questioning (see People v. Shuler, 98 A.D.3d 695, 696, 949 N.Y.S.2d 758 ). Reasonable suspicion is defined as "that ‘quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand’ " (People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951, quoting People v. Cantor, 36 N.Y.2d 106, 112–113, 365 N.Y.S.2d 509, 324 N.E.2d 872 ). Here, when the defendant was stopped by the police, standing alone in a third-floor hallway of a building where a home invasion had occurred on an upper floor, the police had sufficient grounds to form a reasonable suspicion that he had been one of the perpetrators of the home invasion. The circumstances surrounding the stop, namely, the temporal proximity of the stop to the reported crime, the defendant's geographical proximity to the scene of the reported crime, the defendant's presence in a location that matched the reported direction in which the suspects had fled, the wet stain on the defendant's sweat pants that appeared to be blood, and the defendant sweating profusely while wearing only a T-shirt in December, provided the police with the requisite reasonable suspicion to justify the defendant's stop (see People v. Gil, 21 A.D.3d 1120, 803 N.Y.S.2d 634 ; People v. Holland, 4 A.D.3d 375, 770 N.Y.S.2d 872 ). Further, the showup procedure in close temporal and geographic proximity to the crime was not unduly suggestive (see People v. Johnson, 81 N.Y.2d 828, 831, 595 N.Y.S.2d 385, 611 N.E.2d 286 ; People v. Brown, 106 A.D.3d 756, 757, 963 N.Y.S.2d 731 ). Accordingly, the Supreme Court properly denied those branches of the defendant's omnibus motion which were to suppress identification testimony, physical evidence, and his statements to law enforcement officials.
The defendant argues that defense counsel was ineffective because he, among other things, failed to request a jury charge as to the voluntariness of the defendant's statements to the police and failed to object to the adverse inference charge given by the Supreme Court. We disagree. Since the defendant testified at trial and denied making any statements to the police, defense counsel's failure to raise an inconsistent argument may have had a strategic basis (see People v. Moore, 66 A.D.3d 707, 711, 886 N.Y.S.2d 468 ). Further, the court was correct in instructing the jury that they did not have to draw an adverse inference if they accepted that certain physical evidence had been destroyed during Hurricane Sandy (see People v. Daly, 140 A.D.3d 593, 33 N.Y.S.3d 266 ; People v. Hester, 122 A.D.3d 880, 996 N.Y.S.2d 353 ). Moreover, it is not error for defense counsel to fail to make futile motions or objections (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Johnson, 81 A.D.3d 745, 916 N.Y.S.2d 510 ). It appears from the record that the defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Thomas, 143 A.D.3d 1006, 40 N.Y.S.3d 462 ).
Contrary to the defendant's contention, his conviction of assault in the second degree (Penal Law § 120.05[6] ) is not an inclusory concurrent count of his conviction of burglary in the first degree (Penal Law § 140.30[2] ; see People v. Ali, 89 A.D.3d 1417, 932 N.Y.S.2d 616 ; People v. Curella, 296 A.D.2d 578, 746 N.Y.S.2d 30 ). The sentence was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.