Opinion
1189 KA 14–02128
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Terrell L. THOMAS, Defendant–Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). Defendant contends that Supreme Court erred in finding that the police officer's stop of him was lawful and that the officer had reasonable suspicion to frisk him, and thus should have suppressed the gun found during the frisk as well as statements defendant made after his arrest. We reject that contention. The officer lawfully ordered defendant to stop riding his bicycle after the officer observed defendant violating various provisions of the Vehicle and Traffic Law (see People v. Freeman, 144 A.D.3d 1650, 1651, 42 N.Y.S.3d 506 [4th Dept. 2016] ; People v. Johnson, 138 A.D.3d 1454, 1454, 29 N.Y.S.3d 732 [4th Dept. 2016], lv denied 28 N.Y.3d 931, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ). Additionally, the officer had the requisite reasonable suspicion to frisk defendant (see generally People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). In particular, defendant matched the general description of suspects in a stabbing incident that had occurred nearby just minutes earlier (see People v. Lopez, 71 A.D.3d 1518, 1519, 896 N.Y.S.2d 701 [4th Dept. 2010], lv denied 15 N.Y.3d 753, 906 N.Y.S.2d 825, 933 N.E.2d 224 [2010] ; People v. Hethington, 258 A.D.2d 919, 919–920, 687 N.Y.S.2d 836 [4th Dept. 1999], lv denied 93 N.Y.2d 971, 695 N.Y.S.2d 57, 716 N.E.2d 1102 [1999] ). Moreover, defendant was traveling away from the incident, tried to obscure his face when passing the officer, and was evasive and inconsistent when answering the officer's questions. The gun that was seized from defendant and the statements he made following his arrest are therefore not subject to suppression as fruit of the poisonous tree (see People v. Walker, 149 A.D.3d 1537, 1538–1539, 52 N.Y.S.3d 782 [4th Dept. 2017], lv denied 30 N.Y.3d 954, 67 N.Y.S.3d 138, 89 N.E.3d 528 [2017] ).
Defendant's contention that defense counsel was ineffective for failing to afford him an opportunity to testify before the grand jury " ‘does not survive his guilty plea ... because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance’ " ( People v. Halsey, 108 A.D.3d 1123, 1124, 968 N.Y.S.2d 309 [4th Dept. 2013] ). Finally, the sentence is not unduly harsh or severe.