People v. Murray

• Decision Date: 03 February 2016
• Docket Number: 2013-03123,Ind. No. 3427/11.
• Parties: The PEOPLE, etc., respondent, v. Timothy MURRAY, appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 714

24 N.Y.S.3d 194

2016 N.Y. Slip Op. 00714

The PEOPLE, etc., respondent,

v.Timothy MURRAY, appellant.

2013-03123

Ind. No. 3427/11.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 3, 2016.

Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered February 28, 2013, convicting him of robbery in the first degree, robbery in the second degree (two counts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to controvert a search warrant and to suppress physical evidence seized in the execution thereof, and to suppress identification testimony.

ORDERED that the judgment is affirmed.

To the extent that the defendant contends that the warrant authorizing the search of his apartment was not supported by probable cause, his contention is without merit. To establish probable cause, a search warrant application must provide sufficient information “to support a reasonable belief that evidence of a crime may be found in a certain place” (People v. McCulloch, 226 A.D.2d 848, 849, 640 N.Y.S.2d 914; see People v. Paccione, 259 A.D.2d 563, 564, 688 N.Y.S.2d 559). Search warrants, which generally are not composed by lawyers but rather by police officers, should not be read hypertechnically and may be “accorded all reasonable inferences” (People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631). Here, the suppression court correctly determined that the affidavit upon which the warrant was issued contained information sufficient to support a reasonable belief that evidence of illegal activity would be present at the defendant's apartment (see People v. Griffin, 28 A.D.3d 578, 578, 816 N.Y.S.2d 86; People v. Green, 10 A.D.3d 731, 732, 781 N.Y.S.2d 917; People v. Paccione, 259 A.D.2d 563, 564, 688 N.Y.S.2d 559).

To the extent that the defendant now makes additional arguments regarding a lack of probable cause to issue the search warrant, and further argues that the recovery of certain physical evidence from his apartment exceeded the scope the warrant, the contentions are unpreserved for appellate review (see CPL 470.052 ) and, in any event, without merit.

Contrary to the defendant's contention, the suppression court properly declined to suppress the lineup identification evidence on the ground that it was unduly suggestive (see People v. Marshall, 51 A.D.3d 821, 859 N.Y.S.2d 664; People v. Diggs, 19 A.D.3d 1098, 1099, 796 N.Y.S.2d 802; People v. Briggs, 285 A.D.2d 514, 728 N.Y.S.2d 486).

The defendant's contention that he was deprived of the effective assistance of counsel during the pretrial proceedings is without merit (see generally People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Moreover, the defendant's contention that he was deprived of a...