Opinion
174 KA 19-01415
03-24-2023
The PEOPLE of the State of New York, Respondent, v. Carvis MCCUTCHEON, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ABIGAIL D. WHIPPLE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ABIGAIL D. WHIPPLE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, 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 guilty plea of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and robbery in the second degree (§ 160.10 [1]).
Contrary to defendant's contention, Supreme Court did not err in refusing to suppress a gun seized after a search of defendant's person and statements that defendant made to the police. Here, the People established the existence of probable cause to arrest defendant for the robbery based upon a witness's identification of defendant by his street name and in a subsequent photo array (see People v. Woodard , 96 A.D.3d 1619, 1620, 946 N.Y.S.2d 778 [4th Dept. 2012], lv denied 19 N.Y.3d 1030, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012] ; People v. Radcliffe , 23 A.D.3d 301, 301, 808 N.Y.S.2d 22 [1st Dept. 2005], lv denied 6 N.Y.3d 817, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006] ; People v. Higgins , 178 A.D.2d 199, 199, 577 N.Y.S.2d 269 [1st Dept. 1991], lv denied 80 N.Y.2d 832, 587 N.Y.S.2d 916, 600 N.E.2d 643 [1992] ). Further, the court's credibility determinations regarding whether the police officers were, in fact, placing defendant under arrest for the robbery are supported by the record and we see no basis to disturb them (see People v. Robles-Pizarro , 198 A.D.3d 1379, 1379, 155 N.Y.S.3d 271 [4th Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 712, 181 N.E.3d 1140 [2022] ). Inasmuch as defendant's arrest was lawful, we reject defendant's contention that the court erred in refusing to suppress the property seized in a search incident to the lawful arrest (see People v. Harlow , 195 A.D.3d 1505, 1507, 148 N.Y.S.3d 593 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 422, 175 N.E.3d 447 [2021] ; People v. Taylor , 294 A.D.2d 825, 826, 741 N.Y.S.2d 822 [4th Dept. 2002] ) and the statements defendant subsequently made to the police (see People v. Edwards , 187 A.D.3d 1687, 1690, 132 N.Y.S.3d 229 [4th Dept. 2020] ; People v. Daniels , 147 A.D.3d 1392, 1393, 46 N.Y.S.3d 358 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ).
The sentence is not unduly harsh or severe. Defendant's remaining contention is without merit.