Opinion
15232 Ind. No. 4775/17 Case No. 2019–5150
02-03-2022
The PEOPLE of the State of New York, Respondent, v. Kevin TOWNSEND, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Noreen M. Stackhouse of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Noreen M. Stackhouse of counsel), for respondent.
Manzanet–Daniels, J.P., Webber, Oing, Mendez, Higgitt, JJ.
Judgment, Supreme Court, New York County (Michael J. Obus, J. at suppression hearing; Curtis J. Farber, J. at plea; Steven M. Statsinger, J. at sentencing), rendered March 15, 2019, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
The hearing court properly denied defendant's suppression motion. We find no basis for disturbing the court's credibility determinations (see e. g. People v. McCray, 195 A.D.3d 555, 149 N.Y.S.3d 81 [1st Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 428, 175 N.E.3d 453 [2021] ; People v. Johnson, 194 A.D.3d 552, 143 N.Y.S.3d 885 [1st Dept. 2021] ).
The record establishes that the police officers had a sufficient basis for a common-law inquiry of defendant. Once informed by an individual involved in an altercation with defendant that defendant had threatened her with a knife, the officers were more than justified in inquiring of defendant if he was in possession of a knife. Neither the presence of numerous officers or that defendant was escorted by the officers a short distance away from where the altercation occurred, elevated the encounter to a forcible stop or seizure requiring the administration of Miranda warnings (see People v. Vizcaino, 148 A.D.3d 481, 481, 50 N.Y.S.3d 38 [1st Dept. 2017], lv denied 29 N.Y.3d 1088, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ; People v. Francois, 61 A.D.3d 524, 525, 877 N.Y.S.2d 54 [1st Dept. 2009], affd 14 N.Y.3d 732, 896 N.Y.S.2d 300, 923 N.E.2d 583 [2010] ). Rather, the record establishes "that the police were still in the process of gathering information about the alleged incident prior to taking any action" ( People v. Dillhunt, 41 A.D.3d 216, 217, 839 N.Y.S.2d 18 [2007], lv denied 10 N.Y.3d 764, 854 N.Y.S.2d 325, 883 N.E.2d 1260 [2008] ). As noted by the hearing court, the officer's inquiry as to defendant's possible possession of a knife was made to clarify the situation and to ensure the continued safety of himself, the other officers, and the public (see People v. Wallace, 113 A.D.3d 413, 978 N.Y.S.2d 145 [1st Dept. 2014], affd 27 N.Y.3d 1037, 33 N.Y.S.3d 828, 53 N.E.3d 705 [2016] ).
Defendant's claim that he was "effectively" denied counsel because his second attorney, who represented him for a short period of time, waived his right to testify before the grand jury without first notifying defendant is not reviewable on direct appeal. Absent a record on appeal that makes it "irrefutably" clear "that a right to counsel violation has occurred" the claimed violation may only be reviewed on a posttrial CPL 440.10 motion and not on direct appeal ( People v. McLean, 15 N.Y.3d 117, 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010] ). The record before the Court is insufficient to show that a right to counsel violation has irrefutably occurred. In the alternative, to the extent the existing record permits review, we find that such claim is without merit. The determination of whether a defendant will or will not testify before the grand jury is a strategic determination properly made by counsel ( People v. Hogan, 26 N.Y.3d 779, 786–787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ). As the Court noted, while the better practice may be for counsel to consult with his or her client prior to making such a determination, a defendant cannot establish ineffective assistance of counsel based on counsel's decision without demonstrating that he or she was prejudiced by that decision ( Hogan, 26 N.Y.3d at 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 ). Even where no strategy is involved, there must still be a showing of resultant prejudice ( id. ). Here, defendant has failed to show that he was prejudiced by counsel's determination to waive defendant's testimony before the grand jury.