State of New York Supreme Court, Appellate Division Third Judicial Department
December 6, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
HARRY DIVIESTI, APPELLANT.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered November 5, 2010, upon a verdict convicting defendant of the crime of attempted burglary in the second degree and criminal mischief in the third degree.
The opinion of the court was delivered by: Rose, J.
MEMORANDUM AND ORDER
Calendar Date: October 11, 2012
Before: Peters, P.J., Rose, Spain, McCarthy and Garry, JJ.
The occupant of an apartment heard banging on the front door followed by the sound of breaking glass and, upon investigating, found defendant standing at the open door. The occupant then called 911 and provided a detailed description of defendant and the vehicle he drove away in, including the license plate number. A deputy sheriff located defendant at his residence shortly thereafter and, when he was brought back to the apartment, defendant was identified by the occupant. Later, defendant was also identified from a photo array as the perpetrator of an earlier burglary at a different apartment in the same vicinity. In connection with these two incidents, defendant was charged with the crimes of burglary in the second degree, attempted burglary in the second degree and criminal mischief in the third degree. At trial, the victim of the earlier burglary was unable to identify defendant as the perpetrator, and that charge was dismissed. Defendant was then convicted of the remaining charges and sentenced to an aggregate prison term of seven years with three years of postrelease supervision. He now appeals.
Initially, we conclude that defendant's 4th Amendment rights were not violated. The deputy who found the matching license plate on a still-warm vehicle in the driveway of defendant's residence knocked on the door, did not receive any response and, finding it unlocked, opened the door and took two or three steps inside. The deputy saw defendant standing at the top of the stairway inside the house, called to him and asked him to come outside to speak with her. Once defendant voluntarily stepped outside the residence, the deputy engaged him in conversation, determined his identity and, based on his answers to her questions, the matching license plate and his matching physical appearance, she had reasonable suspicion to detain him for a showup identification. Inasmuch as defendant was not arrested or taken into custody inside his home, we agree with County Court that no Payton violation occurred (see Payton v New York, 445 US 573, 576 ; People v Locke, 25 AD3d 877, 879 , lv denied 6 NY3d 835 ; People v Hines, 9 AD3d 507, 510 , lv denied 3 NY3d 707 ; compare People v Jones, 2 NY3d 235, 239 ).*fn1
Nor was the showup identification of defendant unreasonable or unduly suggestive. Defendant was found within 25 minutes in a rural area less than 10 miles from the scene of the attempted burglary and was identified roughly 45 minutes after the incident was reported. The police officers took reasonable measures to ensure that defendant was not viewed in handcuffs or surrounded by officers. As the showup identification was conducted in close geographic and temporal proximity to the crime, and the procedure used was not unduly suggestive, we agree with County Court that it was reasonable under the circumstances (see People v Brisco, 99 NY2d 596, 597 ; People v Judware, 75 AD3d 841, 843 , lv denied 15 NY3d 853 ; People v Mathis, 60 AD3d 1144, 1145-1146 , lv denied 12 NY3d 927 ).
Defendant next contends that his counsel was ineffective for failing to move for a mistrial after the burglary in the second degree count was dismissed because, he argues, the jury likely inferred that he was a serial burglar after hearing all the evidence with respect to that charge. It is just as plausible, however, that counsel believed the dismissal of the top count would cause the jury to question the evidence offered in support of the remaining charges (see People v Washington, 89 AD3d 1140, 1142 , lv denied 18 NY3d 963 ; People v Clark, 115 AD2d 860, 862 , lv denied 67 NY2d 941 ). Moreover, counsel took appropriate steps to ameliorate any prejudice from the testimony by requesting and receiving a curative instruction that the evidence on the burglary charge was "not relevant," "must be disregarded" and "should play no part, no role" in the jury's deliberations. As defendant has not demonstrated the absence of a strategic choice, the failure to move for a mistrial does not constitute ineffective assistance of counsel (see People v Rivera, 71 NY2d 705, 709 ; People v Cruz, 88 AD3d 540, 540-541 , lv denied 18 NY3d 882 ; People v Nakovics, 144 AD2d 704, 704 , lv denied 73 NY2d 894 ).
We have considered defendant's remaining arguments, including his contention that his sentence is harsh and excessive, and find them to be unavailing.
Peters, P.J., Spain, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court