People v. Mccutcheon

2023 NY Slip Op 01614

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CARVIS MCCUTCHEON, DEFENDANT-APPELLANT.

No. 174 KA 19-01415

Supreme Court of New York, Fourth Department

March 24, 2023

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ABIGAIL D WHIPPLE OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, JJ.

Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered May 30, 2019. The judgment convicted defendant upon his plea of guilty of criminal possession of a weapon in the second degree and robbery 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 his guilty plea of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and robbery in the second degree (§ 160.10 [1]).

Contrary to defendant's contention, Supreme Court did not err in refusing to suppress a gun seized after a search of defendant's person and statements that defendant made to the police. Here, the People established the existence of probable cause to arrest defendant for the robbery based upon a witness's identification of defendant by his street name and in a subsequent photo array (see People v Woodard, 96 A.D.3d 1619, 1620 [4th Dept 2012], lv denied 19 N.Y.3d 1030 [2012]; People v Radcliffe, 23 A.D.3d 301, 301 [1st Dept 2005], lv denied 6 N.Y.3d 817 [2006]; People v Higgins 178 A.D.2d 199, 199 [1st Dept 1991], lv denied 80 N.Y.2d 832 [1992]). Further, the court's credibility determinations regarding whether the police officers were, in fact, placing defendant under arrest for the robbery are supported by the record and we see no basis to disturb them (see People v Robles-Pizarro, 198 A.D.3d 1379, 1379 [4th Dept 2021], lv denied 37 N.Y.3d 1664 [2022]). Inasmuch as defendant's arrest was lawful, we reject defendant's contention that the court erred in refusing to suppress the property seized in a search incident to the lawful arrest (see People v Harlow, 195 A.D.3d 1505 1507 [4th Dept 2021], lv denied 37 N.Y.3d 1027 [2021]; People v Taylor, 294 A.D.2d 825, 826 [4th Dept 2002]) and the statements defendant subsequently made to the police (see People v Edwards, 187 A.D.3d 1687, 1690 [4th Dept 2020]; People v Daniels, 147 A.D.3d 1392, 1393 [4th Dept 2017], lv denied 29 N.Y.3d 1077 [2017]).

The sentence is not unduly harsh or severe. Defendant's remaining contention is...