Opinion
2015–08892 Ind. No. 14–01593
11-29-2017
The PEOPLE, etc., respondent, v. Frank POLANCOBATISTA, also known as Frank Batista, appellant.
Scott M. Bishop, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jennifer Spencer of counsel), for respondent.
Scott M. Bishop, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jennifer Spencer of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered August 5, 2015, as amended August 11, 2015, convicting him of robbery in the third degree, sexual abuse in the first degree, grand larceny in the fourth degree, attempted rape in the first degree, attempted sexual abuse in the first degree, and criminal obstruction of breathing, 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 suppress physical evidence and his statements to law enforcement officials.
ORDERED that the judgment, as amended, is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress statements the defendant made to police in a patrol car after his apprehension, but before Miranda warnings were given (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), since those statements were spontaneous and not the result of interrogation or its functional equivalent (see People v. Lopez, 150 A.D.3d 1266, 1266, 52 N.Y.S.3d 902 ; People v. Jackson, 150 A.D.3d 1025, 1026, 55 N.Y.S.3d 338 ; People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228 ; People v. Anderson, 94 A.D.3d 1010, 1011, 942 N.Y.S.2d 561 ; People v. Henderson, 57 A.D.3d 562, 564, 868 N.Y.S.2d 299 ; People v. Davis, 32 A.D.3d 445, 446, 821 N.Y.S.2d 217 ). While the questioning of the defendant months later as to other charges in the absence of his assigned counsel was improper (see People v. Henry, 144 A.D.3d 940, 944–945, 41 N.Y.S.3d 527, lv. granted 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 ), suppression of items recovered during the execution of a search warrant obtained thereafter that was based, in part, on the defendant's statements made to police at that time, was not required. The remaining information contained in the application for the search warrant was sufficient to establish the requisite probable cause (see People v. Murray, 136 A.D.3d 714, 714, 24 N.Y.S.3d 194 ; People v. Wahhab, 84 A.D.3d 982, 983, 922 N.Y.S.2d 539 ; People v. Levy, 65 A.D.3d 1057, 1057–1058, 884 N.Y.S.2d 881, affd. 15 N.Y.3d 510, 914 N.Y.S.2d 721, 940 N.E.2d 547 ; People v. Cassese, 58 A.D.3d 639, 639, 871 N.Y.S.2d 350 ).
Contrary to the defendant's contention, defense counsel was not ineffective for declining to oppose the People's motion to consolidate the indictments because the indictments were properly joinable, consolidation was a proper exercise of discretion, and opposition to the motion would have had little to no chance of success (see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Chirse, 151 A.D.3d 737, 738, 55 N.Y.S.3d 430 ; People v. Walker, 115 A.D.3d 889, 889, 982 N.Y.S.2d 378 ; People v. Cromwell, 99 A.D.3d 1017, 1017, 952 N.Y.S.2d 302 ). In addition, since the People presented evidence sufficient to provide reasonable assurances of the identity and unchanged condition of the DNA evidence at trial (see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Davidson, 111 A.D.3d 848, 848–849, 975 N.Y.S.2d 128 ; People v. Smith, 98 A.D.3d 533, 534–535, 949 N.Y.S.2d 190 ; People v. Ortiz, 80 A.D.3d 628, 630, 914 N.Y.S.2d 281 ; People v. Morgan, 48 A.D.3d 703, 704, 852 N.Y.S.2d 328 ; People v. Gibson, 28 A.D.3d 576, 576, 816 N.Y.S.2d 83 ), defense counsel's failure to object to the admission of certain DNA evidence did not constitute ineffective assistance of counsel (see People v. Chestnut, 149 A.D.3d 772, 774, 50 N.Y.S.3d 549 ; People v. Abuziyad, 136 A.D.3d 837, 838, 24 N.Y.S.3d 516 ).
BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.