        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

556
KA 14-00056
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAWN J. SIVERTSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered December 18, 2013. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law § 160.15
[3]). Contrary to defendant’s contention, we conclude that the
warrantless entry by police into defendant’s residence was justified
by probable cause and exigent circumstances (see People v Burr, 124
AD2d 5, 8, affd 70 NY2d 354, cert denied 485 US 989). The evidence at
the suppression hearing established that, after promptly responding to
a 911 call reporting a robbery of a convenience store by a man with a
knife, the police learned that a store employee had followed and
observed the perpetrator fleeing into the rear of a multiple dwelling.
The store employee reported to the police that the perpetrator was
wearing a hat and scarf. A neighbor at that location reported to the
police that a man matching the perpetrator’s description lived in the
subject building and had been outside the front of that building
approximately 20 to 30 minutes prior to the robbery—wearing a hat and
scarf. Thus, we conclude that the police reasonably believed that
they had located the perpetrator, who was still armed, as they
observed defendant in his apartment unit from the outside (see People
v Jones, 134 AD2d 451, 451, lv denied 70 NY2d 1007). The evidence
established that the police did not know if defendant had access to
the remainder of the building (see People v Stevens, 57 AD3d 1515,
1515, lv denied 12 NY3d 822). There is no evidence that the force
used by the police to gain entry was unreasonable or premature in
light of the circumstances (see generally People v Glia, 226 AD2d 66,
                                 -2-                           556
                                                         KA 14-00056

73, appeal dismissed 91 NY2d 846). Although defendant contends that
he was sleeping and groggy or in a stupor when the police observed him
in his apartment, and thus he did not present a risk of escape (see
generally People v Green, 182 AD2d 704, 704, lv denied 80 NY2d 831),
the police testified that defendant was observed moving about in the
apartment, awake and watching television when they arrived outside the
apartment. According to the police testimony, it was only after they
requested that defendant answer the door that he gave the appearance
of being asleep. “The hearing court’s assessment of credibility is
entitled to great weight, and the court’s determination will not be
disturbed where, as here, it is supported by the record” (People v
Little, 259 AD2d 1031, 1032, lv denied 93 NY2d 926). We conclude that
in light of all the facts, the suppression court properly determined
that there was an urgent need that justified the warrantless entry in
this case (see People v McBride, 14 NY3d 440, 446, cert denied 562 US
931).

     We agree with defendant that certain comments made by the
prosecutor during summation were improper, particularly those
reflecting upon defendant’s silence or demeanor following his arrest
(see People v McArthur, 101 AD3d 752, 752-753, lv denied 20 NY3d
1101). We conclude, however, that the prosecutor’s comments “were not
so pervasive or egregious as to deprive defendant of a fair trial”
(People v Jones, 114 AD3d 1239, 1241, lv denied 23 NY3d 1038 [internal
quotation marks omitted]). Thus, contrary to the contention of
defendant, the “failure to object to those comments does not
constitute ineffective assistance of counsel” (People v Nicholson, 118
AD3d 1423, 1425).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). Contrary to
defendant’s further contention, the evidence of identification of him
as the perpetrator was legally sufficient (see People v Ponder, 19
AD3d 1041, 1042, lv denied 5 NY3d 809; see generally Bleakley, 69 NY2d
at 495).

     Defendant failed to preserve for our review his contention that
he was improperly adjudicated a persistent violent felony offender
(see CPL 470.05 [2]; People v Butler, 203 AD2d 35, 35, lv denied 83
NY2d 965). In any event, having been previously adjudicated a second
violent felony offender based on the 2004 conviction he now seeks to
challenge, “[t]he question is . . . no longer open” (People v
Loughlin, 66 NY2d 633, 635-636, rearg denied 66 NY2d 916).




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
