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

1086
KA 13-01139
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSHUA MITCHELL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSHUA MITCHELL, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered June 19, 2013. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon in the second 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, inter alia, murder in the second degree (Penal
Law § 125.25 [1]). Defendant was a passenger in the backseat of a
Saturn that was stopped by a police officer who heard gunshots and
observed the Saturn leaving the location from which the shots were
fired. The officer saw defendant exit the Saturn immediately before
the shooting. Although a man was hit by one of the gunshots and died
shortly thereafter, the officer was unaware that anyone had been
injured when he stopped the Saturn. The officer and several backup
officers removed defendant and the other people from the car and,
without providing Miranda warnings, the initial officer questioned
defendant about what had occurred. Defendant told the officer that he
had been in the area to purchase marihuana when someone started
shooting. Defendant made similar statements to a second officer who
questioned him without providing Miranda warnings, and also spoke to a
third officer who questioned him but did provide the warnings.

     In the initial omnibus motion, defendant’s first attorney sought,
inter alia, suppression of defendant’s statements to the police or a
Huntley hearing. After that hearing, County Court suppressed
defendant’s statements to the second officer, but declined to suppress
those made to the other officers. The court granted defendant’s
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                                                         KA 13-01139

motion to replace his attorney and assigned a second attorney who,
shortly before trial, moved to suppress all fruits of the stop of the
Saturn on the ground that the officer who stopped it lacked probable
cause to arrest defendant or reasonable suspicion to stop the vehicle.
The court denied the motion, concluding that it was untimely and that
the allegations in the motion papers were insufficient to warrant a
hearing.

     Contrary to defendant’s contention in his main brief, we conclude
that his statements to the first officer “were responses to threshold
inquiries by the police that were ‘intended to ascertain the nature of
the situation during initial investigation of a crime, rather than to
elicit evidence of a crime,’ and those statements thus were not
subject to suppression” (People v Naradzay, 50 AD3d 1489, 1491-1492,
affd 11 NY3d 460, 468; see also People v Shelton, 111 AD3d 1334, 1336-
1337, lv denied 23 NY3d 1025). Even assuming, arguendo, that the
third officer’s failure to make a verbatim record of defendant’s
statement would be a basis for suppression (cf. People v Bridges, 226
AD2d 471, 471; cf. generally People v Esquerdo, 71 AD3d 1424, 1425, lv
denied 14 NY3d 887), we conclude that there is no evidence supporting
defendant’s contention in his main brief that there was such a failure
here. Thus, the court properly denied defendant’s motion to suppress
his statements to those two officers.

     Defendant further contends in his main brief that the court erred
in denying his second suppression motion without conducting a hearing,
and in his main and pro se supplemental briefs he contends that he was
denied effective assistance of counsel by his attorneys’ failures to
make a timely, sufficient motion to suppress the evidence seized as
the result of the stop. He also raises additional instances of
alleged ineffective assistance of counsel in his pro se supplemental
brief. We reject those contentions.

     It is well settled that “ ‘[h]earings are not automatic or
generally available for the asking by boilerplate allegations’ ”
(People v Bryant, 8 NY3d 530, 533, quoting People v Mendoza, 82 NY2d
415, 422). Here, “[t]he allegations in defendant’s moving papers,
when considered in the context of the detailed information provided to
defendant, were insufficient to create a factual dispute requiring
such a hearing . . . Defendant . . . did not address the specific
allegations set forth in the felony complaint” and the other discovery
materials provided to him (People v Springs, 58 AD3d 541, 542, lv
denied 12 NY3d 788), which included the relevant grand jury testimony
of the witness. Thus, the court properly denied the motion without
conducting a hearing based on the insufficiency of the allegations
and, under the circumstances of this case, any issue concerning the
timeliness of the motion is of no moment. Furthermore, “we agree with
the People that defendant’s attorney was not ineffective in failing to
make a suppression motion ‘that ha[d] little or no chance of
success’ ” (People v Chappell, 124 AD3d 1409, 1410, lv denied 25 NY3d
1070, quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d
702). We have considered defendant’s remaining challenges to the
representation provided by his attorneys, and we conclude that they
are without merit. Viewing the evidence, the law and the
                                 -3-                          1086
                                                         KA 13-01139

circumstances of the case, in totality and as of the time of the
representation, we conclude that each of defendant’s attorneys
provided meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).

      Defendant further contends that the conviction is not supported
by legally sufficient evidence and that the verdict is contrary to the
weight of the evidence, based primarily upon his contention that there
is no direct evidence that he fired the shot that killed the victim.
“It is well settled that, even in circumstantial evidence cases, the
standard for appellate review of legal sufficiency issues is whether
any valid line of reasoning and permissible inferences could lead a
rational person to the conclusion reached by the [factfinder] on the
basis of the evidence at trial, viewed in the light most favorable to
the People” (People v Pichardo, 34 AD3d 1223, 1224, lv denied 8 NY3d
926 [internal quotation marks omitted]; see People v Annis, 126 AD3d
1525, 1525-1526; see generally People v Bleakley, 69 NY2d 490, 495).
In addition to the observations of the officer noted above, the People
established, among other things, that one of the passengers in the
Saturn saw defendant throw a black object consistent with a handgun
out of the window of the vehicle as it left the scene of the shooting,
a .38 caliber handgun was found on defendant’s route of travel where
the passenger said defendant threw the object, and an expert testified
that the projectile recovered from the victim’s body had been fired by
that .38 caliber handgun. Furthermore, the same type of ammunition
was found in the trunk of the Saturn. The People also established
that defendant sent a text message to a friend two days before this
incident, seeking a weapon and .38 caliber ammunition. We conclude
that there is ample evidence in the record from which the jury could
have reasonably concluded that defendant fired the shot that killed
the victim. Further, upon viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we reject defendant’s contention that the verdict is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

     “By failing to object to County Court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his present challenge to
that ruling” (People v Reed, 115 AD3d 1334, 1335, lv denied 23 NY3d
1024). In any event, the court’s Sandoval ruling does not constitute
an abuse of discretion. To the contrary, “[t]he prior convictions in
question were relevant to the credibility of defendant” (People v
Tolliver, 93 AD3d 1150, 1152, lv denied 19 NY3d 968; see People v
Williams, 101 AD3d 1730, 1732, lv denied 21 NY3d 1021), and the
court’s ruling took into account all relevant factors and struck a
proper balance between the probative value of the convictions on which
it permitted the prosecutor to cross-examine defendant and the
possible prejudice to him, and precluded or limited cross-examination
with respect to other convictions (see People v Dupleasis, 112 AD3d
1318, 1320, lv denied 22 NY3d 1138).

     Defendant’s further contention in his pro se supplemental brief
that the felony complaint is defective is not properly before us.
“The felony complaint was superseded by the indictment [upon which
                                 -4-                          1086
                                                         KA 13-01139

defendant was found] guilty, and he therefore may not challenge the
felony complaint” on appeal (People v Anderson, 90 AD3d 1475, 1477, lv
denied 18 NY3d 991; see People v Jackson, 286 AD2d 912, 912, lv denied
97 NY2d 755).

     The sentence is not unduly harsh or severe. We have reviewed
defendant’s remaining contentions in his main and pro se supplemental
briefs, and conclude that they are without merit.




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
