State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 106953 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JHAFFRE McCLAIN,

Appellant.

________________________________

Calendar Date: October 19, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

__________

Aaron A. Louridas, Delmar, for appellant, and appellant pro

se.

P. David Soares, District Attorney, Albany (Michael C.

Wetmore of counsel), for respondent.

__________

Peters, P.J.

Appeal from a judgment of the County Court of Albany County

(Herrick, J.), rendered June 24, 2014, convicting defendant upon

his plea of guilty of the crimes of robbery in the first degree

(two counts) and robbery in the second degree.

On the evening of July 11, 2013, City of Albany Police

Officer Anthony Scalise and his partner responded to a radio

dispatch of an armed robbery at a club in the City of Albany. 

The suspects were described as five or six black males wearing

dark clothing and masks. Upon the officer's arrival, several

victims informed them that the perpetrators had just fled on foot

through the parking lot of a nearby restaurant. After conducting

a quick search of the surrounding area, Scalise and his partner
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returned to the scene of the crime where they obtained additional

information from the victims, including that one of the

perpetrators had stolen a backpack and that another was wearing a

baseball cap bearing a Detroit Lions insignia. While speaking

with the victims, Scalise received a radio transmission

indicating that gunshots had been fired at a location a few

blocks away and that two males wearing dark clothing and carrying

a backpack had been observed running through backyards. Scalise

immediately responded to the location of the reported gunfire

and, while canvassing alleyways and backyards for the fleeing

suspects, he was directed by a bystander to an alleyway. Upon

entering the alley, Scalise observed a black Detroit Lions

baseball cap similar to the one described by the victims of the

armed robbery lying in the grass. He and another officer then

continued down the alley to an adjacent yard where they came upon

two males, one of whom was later identified as defendant. Both

men had scratches on their arms, were "sweating profusely and out

of breath," and one of the men had blood on his shirt. The two

were then ordered to the ground, handcuffed and held at the scene

while Scalise returned to the location of the armed robbery to

speak further with the victims. There, Scalise viewed

surveillance video capturing the robbery and identified

defendant, who was wearing a Detroit Lions baseball cap, as one

of the armed robbers. Defendant and the other individual were

thereafter arrested and transported to the police station, where

one of the victims of the robbery identified defendant from a

photo array as one of the assailants. 

Defendant and four others were subsequently charged with

two counts of robbery in the first degree and one count of

robbery in the second degree. Following a combined

Dunaway/Wade/Mapp/Huntley hearing, County Court denied

defendant's motion to suppress both the physical evidence

recovered from his person and the pretrial identification of him.

Defendant thereafter pleaded guilty as charged and was sentenced

to an aggregate prison term of 111⁄2 years followed by five years

of postrelease supervision. He now appeals, challenging County

Court's denial of his suppression motion.

We reject defendant's contention that the evidence obtained

by the police was the product of an illegal detention. "Street
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encounters initiated by police are governed by the

well-established graduated four-level test in which, generally

stated, the level of permissible intrusion increases with the

level of evidence of criminality. These encounters can be

'dynamic situations during which the degree of belief possessed

at the point of inception may blossom by virtue of responses or

other matters which authorize . . . additional action as the

scenario unfolds'" (People v Tillery, 60 AD3d 1203, 1204-1205

[2009] [internal citations omitted], lv denied 12 NY3d 860

[2009], quoting People v De Bour, 40 NY2d 210, 225 [1976]; accord

People v Issac, 107 AD3d 1055, 1057 [2013]). In evaluating the

conduct of the police, "we accord great weight to the credibility

determinations made by the suppression court, given its peculiar

advantage of having seen and heard the witnesses" (People v

Issac, 107 AD3d at 1057; see People v Prochilo, 41 NY2d 759, 761

[1977]).

Here, moments after responding to the scene of the armed

robbery, police received a report of shots fired in an area just

blocks away, observed two men fleeing and were directed by

several bystanders to a location where defendant was discovered. 

"Where, as here, police officers find themselves in a rapidly

developing and dangerous situation presenting an imminent threat

to their well-being, they must be permitted to take reasonable

measures" (People v Allen, 73 NY2d 378, 380 [1989] [citation

omitted]; accord People v Stroman, 107 AD3d 1023, 1024 [2013], lv

denied 21 NY3d 1046 [2013]). Given defendant's geographical and

temporal proximity to both the scene of the armed robbery and the

area where shots were fired, the presence of the baseball cap

matching the one reportedly worn by one of the perpetrators and

defendant's physical appearance upon being approached by the

officers, we find that the police possessed reasonable suspicion

that defendant had committed a crime and were therefore

authorized to forcibly stop, frisk and detain him (see People v

Ford, 110 AD3d 1368, 1371 [2013], lv denied 24 NY3d 1043 [2014];

People v Robinson, 101 AD3d 1245, 1245-1246 [2012], lv denied 20

NY3d 1103 [2013]; People v Robinson, 95 AD3d 906, 906 [2012], lv

denied 19 NY3d 1000 [2012]). Once Scalise returned to the

location of the robbery, viewed surveillance of the incident and

determined that defendant was one of the assailants, probable

cause existed for his arrest (see People v Stroman, 107 AD3d at
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1024; People v Rose, 72 AD3d 1341, 1345 [2010], lv denied 16 NY3d

745 [2011]).

Nor are we persuaded that defendant's identification as one

of the assailants was the result of an impermissibly suggestive

police-arranged showup. Accidental showups that result from mere

happenstance do not implicate due process concerns, so long as

the spontaneous encounter was not caused by police misconduct or

questionable police procedures (see People v Dixon, 85 NY2d 218,

223 [1995]; People v Newball, 76 NY2d 587, 591 [1990]). While

being led up a flight of stairs at the police station, one of the

victims of the robbery saw defendant, who was in civilian clothes

and handcuffs, down a hallway approximately 30 feet away. 

Shortly thereafter, this witness identified defendant from a

photo array as one of the armed robbers, and remarked, "He's the

same guy I saw in the hallway as we came up the stairs." Upon

our review of the record, we find no basis upon which to disturb

County Court's determination that the station house encounter

between defendant and one of the victims was accidental,

spontaneous and not the product of police misconduct or

questionable police procedures (see People v Brown, 123 AD3d 938,

939 [2014], lv denied 25 NY3d 949 [2015]; People v Rodriguez, 98

AD3d 530, 531-532 [2012], lvs denied 19 NY3d 1105 [2012], 20 NY3d

935 [2012]; People v Gomez, 60 AD3d 782, 783 [2009], lv denied 12

NY3d 845 [2009]; People v Nimmons, 177 AD2d 444, 445 [1991], lv

denied 79 NY2d 922 [1992]). 

Defendant's remaining contentions, raised in his

supplemental pro se brief, are unpreserved for our review. 

Garry, Egan Jr., Rose and Mulvey, JJ., concur.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court