People v. Brown

• Decision Date: 06 January 2005
• Docket Number: 5055.,5056.
• Citation: 789 N.Y.S.2d 106,2005 NY Slip Op 00092,14 A.D.3d 356
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DWAYNE BROWN, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ERIC BURWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

14 A.D.3d 356

789 N.Y.S.2d 106

2005 NY Slip Op 00092

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DWAYNE BROWN, Appellant.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ERIC BURWELL, Appellant.

5055.

5056.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 6, 2005.

Judgment, Supreme Court, New York County (Michael J. Obus, J., on dismissal motion; Edward McLaughlin, J., at suppression hearing, jury trial and sentence), rendered August 7, 2002, convicting defendants of robbery in the second degree, and sentencing defendant Brown, as a persistent violent felony offender, to a term of 16 years to life, and sentencing defendant Burwell, as a second violent felony offender, to a term of 11 years, unanimously affirmed.

The court properly denied defendant Brown's suppression motion. There is no basis for disturbing the court's credibility determinations, including its resolution of any inconsistencies between police testimony and a tape recording (see People v Prochilo, 41 NY2d 759, 761 [1977]). The hearing evidence establishes that the police had reasonable suspicion justifying a temporary investigative detention of Brown for prompt identification, based upon a sufficiently specific description of Brown coupled with police observations of Brown's suspicious behavior as he proceeded in the reported direction of flight only a few minutes after and a few blocks away from the robbery, as well as the fact that Brown reasonably appeared to be accompanying defendant Burwell, who met the description of the other robber and was also acting suspiciously (see e.g. People v Plato, 247 AD2d 317 [1998], lv denied 91 NY2d 976 [1998]).

The court properly denied defendants' motions to dismiss the indictment on the ground of an alleged violation of their right to testify before the grand jury. The People did not violate defendants' rights under CPL 190.50 (5) (a) or to due process when they presented the case to the grand jury immediately upon the arrests and prior to any arraignment. The prosecutor had no duty to inform defendants of their right to testify before the grand jury insofar as they had not yet been arraigned in a local criminal court upon the felony complaint (People v Jones, 281 AD2d 185 [2001], lv denied 96 NY2d 831 [2001]; People v Munoz, 207 AD2d 418 [1994], lv denied 84 NY2d 938 [1994]). There is no evidence that the prosecutor intentionally delayed arraignment in order to deprive defendants of...