People v. Jackson

• Decision Date: 15 November 1995
• Citation: 634 N.Y.S.2d 327,221 A.D.2d 964
• Parties: PEOPLE of the State of New York, Respondent, v. Donald JACKSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 327

634 N.Y.S.2d 327

221 A.D.2d 964

PEOPLE of the State of New York, Respondent, v. Donald JACKSON, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 15, 1995.

Edward J. Nowak by Kathleen McDonough, Rochester, for appellant.

Howard R. Relin by Elizabeth Clifford, Rochester, for respondent.

Before PINE, J.P., and FALLON, CALLAHAN, DOERR and DAVIS, JJ.

MEMORANDUM.

There is no merit to the contention of defendant that Supreme Court erred in denying his motion to suppress property seized from him during his detention by police officers. The record reveals that the actions of the police in stopping defendant and conducting a pat-down frisk were supported by a reasonable suspicion that criminal activity was at hand (see, People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951). Because the police were justified in requesting that defendant set down the hammer and case he was carrying, the court properly concluded that defendant intentionally abandoned that property when he fled from the lawful police detention (see, People v. Marrero, 173 A.D.2d 244, 245, 569 N.Y.S.2d 449, appeal dismissed 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421).

The court erred in failing to determine the suppression motion prior to the commencement of trial (see, CPL 710.40[3] ). However, because the evidence of guilt was overwhelming and there was no prejudice to defendant's substantial rights, reversal is not required (see, People v. Gaddy, 42 A.D.2d 735, 736, 346 N.Y.S.2d 744; see also, People v. Brannaka, 46 A.D.2d 929, 361 N.Y.S.2d 434). Additionally, defendant expressly consented to the deviation from CPL 710.40(3) (see, People v. Melendez, 141 A.D.2d 860, 861, 530 N.Y.S.2d 202, lv. denied, 73 N.Y.2d 788, 536 N.Y.S.2d 748, 533 N.E.2d 678; cf., People v. Blowe, 130 A.D.2d 668, 515 N.Y.S.2d 812).

Finally, there is no merit to the contention that defendant was denied effective assistance of counsel. The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that defense counsel provided meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Judgment unanimously affirmed.