MARTIN, DOUGLAS K., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
794
KA 11-00293
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DOUGLAS K. MARTIN, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered January 4, 2011. The judgment
convicted defendant, upon his plea of guilty, of 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 his plea of guilty of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). Defendant failed to preserve
for our review his challenge to the authenticity of the recording of
police radio transmissions inasmuch as he did not object to their
admission in evidence at the suppression hearing that preceded the
plea (see CPL 470.05 [2]; People v Mack, 89 AD3d 864, 866, lv denied
18 NY3d 959; People v Alexander, 48 AD3d 1225, 1226, lv denied 10 NY3d
859). In any event, defendant’s contention that the recording is
inauthentic because it may have been digitally “burned” is based upon
mere speculation and is therefore without merit.
We reject defendant’s further contention that Supreme Court erred
in refusing to suppress the weapon found in his vehicle and his
statements to the police, which he alleges were the fruit of an
illegal stop and search of his vehicle. The police had reasonable
suspicion to stop defendant’s vehicle (see People v Caponigro, 76 AD3d
913, 913-914, lv denied 15 NY3d 952; People v Velez, 59 AD3d 572, 575,
lv denied 12 NY3d 860), and the incremental series of investigative
steps taken thereafter were lawful (see generally People v Torres, 74
NY2d 224, 231 n 4). Finally, to the extent that defendant’s
contention that he was denied effective assistance of counsel survives
his plea of guilty (see People v Hawkins, 94 AD3d 1439, 1441), we
conclude that it lacks merit (see generally People v Ford, 86 NY2d
397, 404).
-2- 794
KA 11-00293
Entered: June 15, 2012 Frances E. Cafarell
Clerk of the Court