Opinion
2013-03123 Ind. No. 3427/11.
02-03-2016
The PEOPLE, etc., respondent, v. Timothy MURRAY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered February 28, 2013, convicting him of robbery in the first degree, robbery in the second degree (two counts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to controvert a search warrant and to suppress physical evidence seized in the execution thereof, and to suppress identification testimony.
ORDERED that the judgment is affirmed.
To the extent that the defendant contends that the warrant authorizing the search of his apartment was not supported by probable cause, his contention is without merit. To establish probable cause, a search warrant application must provide sufficient information “to support a reasonable belief that evidence of a crime may be found in a certain place” (People v. McCulloch, 226 A.D.2d 848, 849, 640 N.Y.S.2d 914; see People v. Paccione, 259 A.D.2d 563, 564, 688 N.Y.S.2d 559). Search warrants, which generally are not composed by lawyers but rather by police officers, should not be read hypertechnically and may be “accorded all reasonable inferences” (People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631). Here, the suppression court correctly determined that the affidavit upon which the warrant was issued contained information sufficient to support a reasonable belief that evidence of illegal activity would be present at the defendant's apartment (see People v. Griffin, 28 A.D.3d 578, 578, 816 N.Y.S.2d 86; People v. Green, 10 A.D.3d 731, 732, 781 N.Y.S.2d 917; People v. Paccione, 259 A.D.2d 563, 564, 688 N.Y.S.2d 559).
To the extent that the defendant now makes additional arguments regarding a lack of probable cause to issue the search warrant, and further argues that the recovery of certain physical evidence from his apartment exceeded the scope the warrant, the contentions are unpreserved for appellate review (see CPL 470.052 ) and, in any event, without merit.
Contrary to the defendant's contention, the suppression court properly declined to suppress the lineup identification evidence on the ground that it was unduly suggestive (see People v. Marshall, 51 A.D.3d 821, 859 N.Y.S.2d 664; People v. Diggs, 19 A.D.3d 1098, 1099, 796 N.Y.S.2d 802; People v. Briggs, 285 A.D.2d 514, 728 N.Y.S.2d 486).
The defendant's contention that he was deprived of the effective assistance of counsel during the pretrial proceedings is without merit (see generally People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Moreover, the defendant's contention that he was deprived of a fair trial as a result of certain remarks made during the People's summation is partially unpreserved for appellate review (see CPL 470.052; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89). In any event, most of the challenged summation remarks were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–111, 383 N.Y.S.2d 204, 347 N.E.2d 564), or responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Joubert, 125 A.D.3d 686, 686, 999 N.Y.S.2d 552). To the extent that any remaining challenged remarks were improper, they were not so egregious as to deprive the defendant of a fair trial (see People v. Williams, 123 A.D.3d 1152, 997 N.Y.S.2d 499, lv. granted 25 N.Y.3d 1173, 15 N.Y.S.3d 305, 36 N.E.3d 108).