Opinion
KA 00-01473
March 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered May 24, 2000, convicting defendant after a jury trial of, inter alia, scheme to defraud in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-McLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (LUKE MARTLAND OF COUNSEL), FOR INTERVENOR-RESPONDENT.
PRESENT: HURLBUTT, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of scheme to defraud in the first degree (Penal Law § 190.65 [b]) and grand larceny in the fourth degree (§ 155.30 [1]). Contrary to defendant's contention, Supreme Court properly denied his suppression motion. The off-duty police officer had an articulable basis justifying his initial approach of defendant, who was in a stopped vehicle (see People v. Ocasio, 85 N.Y.2d 982, 985). Moreover, the officer had a founded suspicion and thus properly invoked his common-law right of inquiry, entitling the officer to "interfere with [defendant] to the extent necessary to gain explanatory information, but short of a forcible seizure" (People v. De Bour, 40 N.Y.2d 210, 223). Defendant's false statements in response to the officer's inquiry, in combination with the information already conveyed to the officer by the bank manager and the observations previously made by the officer of defendant's suspicious behavior, provided the officer with reasonable suspicion sufficient to justify a brief investigative detention of defendant (see People v. Roque, 99 N.Y.2d 50, 54; People v. Gonzalez, 91 N.Y.2d 909, 910; People v. Hicks, 68 N.Y.2d 234, 238-242). The police thereafter acquired probable cause justifying the arrest of defendant when defendant made more detailed and more inculpatory admissions in response to further questioning by other officers (see People v. D'Agostino, 265 A.D.2d 923, lv denied 94 N.Y.2d 861; People v. Cole, 152 A.D.2d 851, 852-853, lv denied 74 N.Y.2d 895). Because the arrest was supported by probable cause, the police were authorized to search defendant incident to that lawful arrest and thus properly seized the inculpatory paper from defendant's pocket during that search (see People ex rel. Johnson v. New York State Div. of Parole, 299 A.D.2d 832; see also People v. Weintraub, 35 N.Y.2d 351, 353-354; People v. Welch, 289 A.D.2d 936, lv denied 98 N.Y.2d 641). For the same reason, the subsequently obtained identification evidence need not be suppressed.
The proof is legally sufficient to support the conviction of scheme to defraud in the first degree (see People v. Bastian, 294 A.D.2d 882, lv denied 98 N.Y.2d 694; People v. Brown, 286 A.D.2d 960, 961, lv denied 97 N.Y.2d 679; see generally People v. Bleakley, 69 N.Y.2d 490, 495). Defendant was not deprived of effective assistance of counsel. "The claimed deficiencies in counsel's performance do not undercut the conclusion that defendant * * * received meaningful representation" (People v. Benevento, 91 N.Y.2d 708, 714; see People v. Hines, 300 A.D.2d 1036 [Dec. 30, 2002]). Contrary to defendant's further contention, CPL 410.91 is not unconstitutional on its face (see generally People v. Lewis, 261 A.D.2d 648, lv denied 93 N.Y.2d 1003; People v. Kinch, 237 A.D.2d 830, 831, lv denied 90 N.Y.2d 860). More particularly, the Legislature's exclusion of the crime of scheme to defraud in the first degree from the list of "specified" offenses in CPL 410.91(5) for which one may receive an alternative sentence of drug treatment and parole supervision is not violative of defendant's right to due process or equal protection. The sentence is not unduly harsh or severe.