H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CRAIG P. SCHLANGER OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FIGUEROA, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P.
MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, CURRAN, AND WINSLOW, JJ.
from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered October 8, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a
controlled substance in the first degree.
hereby ORDERED that the judgment so appealed from is
On appeal from a judgment convicting him, after a jury trial,
of criminal possession of a controlled substance in the first
degree (Penal Law § 220.21 ), defendant contends in
his main brief that County Court erred in refusing to
suppress his statements to the police inasmuch as he was
subjected to custodial interrogation and thus
Miranda warnings were required. We reject that
contention. "In determining whether a defendant was in
custody for Miranda purposes, [t]he test is not what
the defendant thought, but rather what a reasonable [person],
innocent of any crime, would have thought had he [or she]
been in the defendant's position' " (People
v Kelley, 91 A.D.3d 1318, 1318 [4th Dept 2012], lv
denied 19 N.Y.3d 963');">19 N.Y.3d 963 , quoting People v
Yukl, 25 N.Y.2d 585, 589 , cert denied
400 U.S. 851');">400 U.S. 851 ). Here, the record establishes that
defendant was stopped by the police in a public place and was
not restrained in any way. Defendant was asked two simple
questions and the encounter lasted a short amount of time.
Consequently, we conclude that a reasonable person, innocent
of any crime, would not have thought that he was in custody
and thus Miranda warnings were not necessary
(see People v Bennett, 70 N.Y.2d 891, 893-894
; People v Spirles, 136 A.D.3d 1315, 1316 [4th
Dept 2016], lv denied 27 N.Y.3d 1007');">27 N.Y.3d 1007 ,
cert denied ___ U.S. ___, 137 S.Ct. 298');">137 S.Ct. 298 ;
Kelley, 91 A.D.3d at 1319).
reject defendant's contention in his main brief that the
court erred in refusing to suppress all evidence arising from
his allegedly improper stop by the police. We conclude that
the police had reasonable suspicion to stop defendant when he
exited a bus based on information that they received from a
confidential informant, who said that defendant had traveled
to New York City, purchased a kilo of cocaine, and was
returning to Syracuse via bus, and the confirmatory
observations of New York City police officers. Thus, the stop
was lawful inasmuch as "sufficient information in the
record supports the lower court['s] determination that
the tip was reliable under the totality of the circumstances,
satisfied the two-pronged Aguilar-Spinelli test for
the reliability of hearsay tips in this particular context
and contained sufficient information about defendant['s]
unlawful possession of a [controlled substance] to create
reasonable suspicion" (People v Argyris, 24
N.Y.3d 1138, 1140-1141 , rearg denied 24
N.Y.3d 1211 , cert denied ___ U.S. ___, 136
S.Ct. 793 ; see People v Torres, 125 A.D.3d
1481, 1482 [4th Dept 2015], lv denied 25 N.Y.3d 1172');">25 N.Y.3d 1172
). We have considered defendant's remaining
contentions in his pro se supplemental brief with respect to
the suppression ruling and conclude that they are without
reject defendant's contention in his main brief that he
was denied effective assistance of counsel. We conclude that
"the evidence, the law, and the circumstances of [this]
particular case, viewed in totality and as of the time of the
representation, reveal that the attorney provided meaningful
representation" (People v Baldi, 54 N.Y.2d 137,
147 ). Moreover, defendant's contention in his main
brief that his attorney failed to make effective use of
certain discovery materials while cross-examining the
People's witnesses at the suppression hearing concerns
matters outside the record on appeal, and it must therefore
be raised by way of a motion pursuant to CPL 440.10 (see
People v Sanford, 138 A.D.3d 1435, 1436 [4th Dept 2016];
see generally People v Cyrus, 48 A.D.3d 150, 152-154
[1st Dept 2007], lv denied 10 N.Y.3d 763');">10 N.Y.3d 763 ).
reject defendant's contentions raised in his pro se
supplemental brief that the evidence before the grand jury
was legally insufficient and that the grand jury was
improperly instructed on the law inasmuch as those
contentions are " not reviewable upon an appeal from an
ensuing judgment of conviction based upon legally sufficient
trial evidence' " (People v Baker, 67
A.D.3d 1446, 1447 [4th Dept 2009], lv denied 14
N.Y.3d 769 ; see CPL 210.30 ; People v
Miles, 236 A.D.2d 786, 787 [4th Dept 1997], lv
denied90 N.Y.2d 861');">90 N.Y.2d 861 ). Finally, we have ...