People v Monroe

People v Monroe 2015 NY Slip Op 07223 Decided on October 6, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 6, 2015
Gonzalez, P.J., Mazzarelli, Sweeny, Richter, Manzanet-Daniels, JJ.
15778 1989/11

[*1] The People of the State of New York Respondent,

v

Dwinel Monroe, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark Zeno of counsel), for appellant

Dwinel Monroe, appellant pro se.

Cyrus R. Vance, Jr., District Attorney, New York (Nicole A. Coviello of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J. at initial suppression hearing; Daniel P. FitzGerald, J. at independent source hearing, jury trial and sentencing), rendered February 24, 2012, convicting defendant of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.

The record supports the court's determination that, notwithstanding a suppressed identification procedure, the victim had an independent source for his identification of defendant (see Neil v Biggers, 409 US 188, 199-200 [1972]; People v Williams, 222 AD2d 149 [1996], lv denied 88 NY2d 1072 [1996]). Among other things, the victim provided an unusually detailed and accurate description of defendant. Furthermore, the showup identification, which had been suppressed solely on Fourth Amendment grounds, was not unduly suggestive.

The court was not required to make a further inquiry into defendant's "interest" in representing himself, because defendant never "clearly and unequivocally" invoked his right to do so (see People v LaValle, 3 NY3d 88, 106 [2004]). To the extent defendant may have expressed such an interest, the record demonstrates that he abandoned it.

Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received

effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 6, 2015

CLERK