Opinion
556 KA 14-00056
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Shawn J. SIVERTSON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [3] ). Contrary to defendant's contention, we conclude that the warrantless entry by police into defendant's residence was justified by probable cause and exigent circumstances (see People v. Burr, 124 A.D.2d 5, 8, 510 N.Y.S.2d 949, affd. 70 N.Y.2d 354, 520 N.Y.S.2d 739, 514 N.E.2d 1363, cert. denied 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505 ). The evidence at the suppression hearing established that, after promptly responding to a 911 call reporting a robbery of a convenience store by a man with a knife, the police learned that a store employee had followed and observed the perpetrator fleeing into the rear of a multiple dwelling. The store employee reported to the police that the perpetrator was wearing a hat and scarf. A neighbor at that location reported to the police that a man matching the perpetrator's description lived in the subject building and had been outside the front of that building approximately 20 to 30 minutes prior to the robbery—wearing a hat and scarf. Thus, we conclude that the police reasonably believed that they had located the perpetrator, who was still armed, as they observed defendant in his apartment unit from the outside (see People v. Jones, 134 A.D.2d 451, 451, 521 N.Y.S.2d 72, lv. denied 70 N.Y.2d 1007, 526 N.Y.S.2d 942, 521 N.E.2d 1085 ). The evidence established that the police did not know if defendant had access to the remainder of the building (see People v. Stevens, 57 A.D.3d 1515, 1515, 871 N.Y.S.2d 525, lv. denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 ). There is no evidence that the force used by the police to gain entry was unreasonable or premature in light of the circumstances (see generally People v. Glia, 226 A.D.2d 66, 73, 651 N.Y.S.2d 967, appeal dismissed 91 N.Y.2d 846, 667 N.Y.S.2d 680, 690 N.E.2d 489 ). Although defendant contends that he was sleeping and groggy or in a stupor when the police observed him in his apartment, and thus he did not present a risk of escape (see generally People v. Green, 182 A.D.2d 704, 704, 582 N.Y.S.2d 472, lv. denied 80 N.Y.2d 831, 587 N.Y.S.2d 916, 600 N.E.2d 643 ), the police testified that defendant was observed moving about in the apartment, awake and watching television when they arrived outside the apartment. According to the police testimony, it was only after they requested that defendant answer the door that he gave the appearance of being asleep. “The hearing court's assessment of credibility is entitled to great weight, and the court's determination will not be disturbed where, as here, it is supported by the record” (People v. Little, 259 A.D.2d 1031, 1032, 688 N.Y.S.2d 313, lv. denied 93 N.Y.2d 926, 693 N.Y.S.2d 510, 715 N.E.2d 513 ). We conclude that in light of all the facts, the suppression court properly determined that there was an urgent need that justified the warrantless entry in this case (see People v. McBride, 14 N.Y.3d 440, 446, 902 N.Y.S.2d 830, 928 N.E.2d 1027, cert. denied 562 U.S. 931, 131 S.Ct. 327, 178 L.Ed.2d 212 ).
We agree with defendant that certain comments made by the prosecutor during summation were improper, particularly those reflecting upon defendant's silence or demeanor following his arrest (see People v. McArthur, 101 A.D.3d 752, 752–753, 956 N.Y.S.2d 71, lv. denied 20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535 ). We conclude, however, that the prosecutor's comments “were not so pervasive or egregious as to deprive defendant of a fair trial” (People v. Jones, 114 A.D.3d 1239, 1241, 980 N.Y.S.2d 670, lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507 [internal quotation marks omitted] ). Thus, contrary to the contention of defendant, the “failure to object to those comments does not constitute ineffective assistance of counsel” (People v. Nicholson, 118 A.D.3d 1423, 1425, 988 N.Y.S.2d 765 ).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's further contention, the evidence of identification of him as the perpetrator was legally sufficient (see People v. Ponder, 19 A.D.3d 1041, 1042, 796 N.Y.S.2d 472, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161 ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his contention that he was improperly adjudicated a persistent violent felony offender (see CPL 470.05 [2 ]; People v. Butler, 203 A.D.2d 35, 35, 610 N.Y.S.2d 477, lv. denied 83 N.Y.2d 965, 616 N.Y.S.2d 17, 639 N.E.2d 757 ). In any event, having been previously adjudicated a second violent felony offender based on the 2004 conviction he now seeks to challenge, “[t]he question is ... no longer open” (People v. Loughlin, 66 N.Y.2d 633, 635–636, 495 N.Y.S.2d 357, 485 N.E.2d 1022, rearg. denied 66 N.Y.2d 916, 498 N.Y.S.2d 1028, 489 N.E.2d 771 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.