Calendar Date: April 23, 2013
Linda B. Johnson, West Sand Lake, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), for respondent.
Before: Peters, P.J., Rose, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered October 19, 2009, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
In satisfaction of a seven-count indictment, defendant pleaded guilty to the crime of robbery in the first degree, admitting that he forcibly stole property from the victims while displaying a loaded handgun. County Court sentenced him in accordance with the plea agreement to a prison term of six years followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that the initial stop and detention by the police constituted an arrest requiring probable cause. Defendant urges that, in the absence of any information connecting him to the armed robbery, the arrest was unlawful, thereby rendering the evidence seized from him at the police station inadmissible. We disagree.
Where a police officer reasonably suspects "that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person" (People v De Bour, 40 N.Y.2d 210, 223 ; see CPL 140.50 ). "'[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion'" (People v Williams, 305 A.D.2d 804, 806 , quoting Terry v Ohio, 392 U.S. 1, 21 ; see People v Carney, 58 N.Y.2d 51, 53 ). If the intrusion involved is of sufficient magnitude, it can constitute an arrest, but not every seizure where a police officer draws his or her gun and handcuffs an individual necessarily elevates the stop to a full-blown arrest (see People v Allen, 73 N.Y.2d 378, 380 ; People v Chestnut, 51 N.Y.2d 14, 20-21 , cert denied 449 U.S. 1018 ; People v Williams, 305 A.D.2d at 806; People v Bennett, 189 A.D.2d 924, 925 ).
The evidence at the suppression hearing reveals that two police officers received a radio dispatch of an armed robbery in progress occurring a block away from their location. Although no description of the suspect was provided by the dispatcher, the officers, who arrived at the scene within seconds of the dispatch, observed defendant, the only individual in the area, walking in the driveway alongside the residence. The officers drew their guns and ordered defendant to stop and lay on the ground, at which point defendant was handcuffed, escorted to the patrol car and told that he was being detained pending an investigation. "Where, as here, police officers find themselves in a rapidly developing and dangerous situation presenting an imminent threat to their well-being, they must be permitted to take reasonable measures" (People v Allen, 73 N.Y.2d at 380 [citation omitted]; see People v Bennett, 189 A.D.2d at 925). Given the extremely short period of time between the report of the armed robbery and the arrival of the officers on the scene, defendant's presence alongside the residence and the absence of any other individual in the vicinity, the officers were justified in forcibly detaining defendant in order to quickly confirm or dispel their reasonable suspicion of defendant's possible involvement in the armed robbery (see People v Hicks, 68 N.Y.2d 234, 240-241 ; People v De Bour, 40 N.Y.2d at 223; People v Tyrell, 82 A.D.3d 1352, 1353-1354 , lv denied 17 N.Y.3d 810 ). Furthermore, defendant was informed that he was being detained, was not questioned during that period of time and was held at the crime scene in order to effectuate showups by the victims of the robbery (see People v Hicks, 68 N.Y.2d at 242-243; People v Chestnut, 51 N.Y.2d at 21). The victims gave a description of the assailant that matched defendant and identified defendant as the perpetrator, with the first identification occurring within 15 minutes of his detainment. Those identifications, together with a gun and other evidence found alongside the residence, provided probable cause for the officers to arrest defendant (see People v Tyrell, 82 A.D.3d at 1354; People v Tillman, 57 A.D.3d 1021, 1023 ). Accordingly, the evidence obtained from defendant at the police station was admissible against him (see People v Nesbitt, 56 A.D.3d 816, 819 , lv denied 11 N.Y.3d 928 ), as were the spontaneous statements he made during his transport to the police station (see People v Rabideau, 82 A.D.3d 1283, 1284 , lv denied 17 N.Y.3d 799 ; People v Starks, 37 A.D.3d 863, 865 ).
Next, County Court did not err in denying defendant's motion to suppress the showup identifications of him at the crime scene. A showup identification is permissible provided it is reasonable under the circumstances and not unduly suggestive (see People v Starks, 37 A.D.3d at 865). Here, the suppression record establishes that the showup identifications were "conducted in close geographic and temporal proximity to the crime" — approximately 15 to 25 minutes after the officers arrived at the crime scene — thereby satisfying the People's initial burden as to the reasonableness of the procedure (People v Brisco, 99 N.Y.2d 596, 597 ; see People v Harris, 64 A.D.3d 883, 883-884 , lv denied 13 N.Y.3d 836 ). Defendant was immediately identified by the victims and the circumstances surrounding the particular identification did not render the procedure unduly suggestive (see People v Harris, 64 A.D.3d at 884; People v Armstrong, 11 A.D.3d 721, 722 , lv denied 4 N.Y.3d 760 ).
Defendant's contention that his plea was not knowingly, voluntarily or intelligently made is unpreserved for our review as there is no indication in this record that he moved to withdraw his plea or vacate the judgment of conviction (see People v Doe, 95 A.D.3d 1449, 1449 , lvs denied 19 N.Y.3d 995, 998 ), and he made no statements during the plea allocution that would implicate the narrow exception to the preservation requirement (see People v DeJesus, 96 A.D.3d 1295, 1295 ; People v Campbell, 89 A.D.3d 1279, 1279 ). The failure to make such a motion also renders unpreserved for our review his contention that he was denied the effective assistance of counsel (see People v Iadicicco, 100 A.D.3d 1147, 1147 ). To the extent that defendant's assertions of being denied meaningful representation pertain to matters outside the record, they are more properly the subject of a CPL article 440 motion (see People v Aubrey, 73 A.D.3d 1393, 1394 , lv denied 16 N.Y.3d 893 ; People v Varmette, 70 A.D.3d 1167, 1172 , lv denied 14 N.Y.3d 845 ). Finally, by pleading guilty, defendant waived his pro se challenge to the grand jury proceeding (see People v Johnson, 97 A.D.3d 990, 991 ).
Peters, P.J., Rose and Egan Jr., JJ., ...