| People v Jones |
| 2013 NY Slip Op 07876 [111 AD3d 1148] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DerekA. Jones, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland, for respondent.
Garry, J. Appeal from a judgment of the County Court of Cortland County(Campbell, J.), rendered September 2, 2010, upon a verdict convicting defendant of thecrimes of robbery in the first degree, robbery in the second degree and false personation.
In May 2009, two individuals in the City of Cortland, Cortland County grabbed avictim from behind, threatened her with a knife and stole her purse. Shortly thereafter,police detained defendant and Desiree Smith nearby. The victim identified them as herassailants, and Smith agreed to cooperate with police. Following a jury trial, defendantwas convicted of robbery in the first degree, robbery in the second degree, and falsepersonation; he was acquitted of criminal possession of a weapon in the third degree. Hewas sentenced as a persistent violent felony offender to an aggregate prison term of 25years to life. Defendant appeals.
Initially, defendant contends that County Court erred in denying his pretrial motionto dismiss the indictment on the ground that he was improperly forced to testify beforethe grand jury in prison attire and mechanical restraints. The minutes reveal that thePeople requested the removal of defendant's handcuffs at the beginning of his testimony.Defendant remained in shackles and prison garb thereafter. However, as he neitherobjected nor requested curative instructions, this contention is unpreserved (see People v Abron, 37 AD3d1163, 1163 [2007], lv denied 8 NY3d 980 [2007]; People v Fields,262 AD2d 793, 794-795 [1999], lv denied 93 NY2d 1017 [1999]; see alsoPeople v Rouse, 79 NY2d 934, 935 [1992]). Moreover, our review of the testimonyreveals no likelihood that the grand jury's determination was affected by any prejudice[*2]resulting from defendant's appearance.
County Court properly found that probable cause existed for defendant's arrest.Testimony at the Dunaway hearing established that, within moments after theincident, police located Smith, asked her about the whereabouts of the second assailant,saw her glance toward a dumpster and heard someone run away from behind it. Officersfound the victim's purse and umbrella behind this dumpster, and a dog trained in trackingsuspects led them from these items to a nearby overgrown area where defendant wasdiscovered, lying face down and dressed as described by the victim. This informationwas sufficient to support the officers' reasonable belief that defendant was the secondindividual who had perpetrated the robbery (see People v Shulman, 6 NY3d 1, 25-26 [2005], certdenied 547 US 1043 [2006]; People v Tunstall, 278 AD2d 585, 587 [2000],lv denied 96 NY2d 788 [2001]; People v Lynch, 178 AD2d 779, 781[1991], lv denied 79 NY2d 949 [1992]).
We reject defendant's contention that the victim's pretrial identification of defendantshould have been suppressed. Testimony at the Wade hearing revealed that, 20 to40 minutes after the incident, a police officer transported the victim to the area wheredefendant had just been found. She identified him from within the patrol car as he stoodon a well-lit street with several police officers, wearing handcuffs that wereinconspicuous or invisible due to his clothing and position.[FN1] Such a showup identification is permissible where, as here, it occurs in close temporaland geographical proximity to the crime and no other circumstances are undulysuggestive (see People vMathis, 60 AD3d 1144, 1145-1146 [2009], lv denied 12 NY3d 927[2009]; People v Mattis, 46AD3d 929, 931 [2007]; People v Golston, 13 AD3d 887, 889 [2004], lvdenied 5 NY3d 789 [2005]).
We reject defendant's claim that his exclusion from a sidebar conference addressinghis counsel's potential obligation to supply certain documents to the People constituted adenial of his right to be present at every material stage of the trial (see CPL260.20; People vVelasquez, 1 NY3d 44, 47 [2003]).[FN2] Defendant had expressly waived his right to be present at bench conferences byexecuting written waivers in open court and by affirming the waivers' knowing,voluntary and intelligent character in a thorough colloquy with County Court (see People v Cahill, 2 NY3d14, 55-56 [2003]; People vBowman, 62 AD3d 1210, 1211 [2009], lv denied 13 NY3d 742[2009]).[FN3]
Defendant next contends that his convictions for robbery in the first and seconddegrees [*3]were against the weight of the evidence.Where, as here, a different result would not have been unreasonable, such a reviewrequires this Court to "weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d633, 643 [2006] [internal quotation marks and citations omitted]). The testimony attrial included descriptions of the robbery by the victim and an eyewitness, as well asSmith's detailed account of her actions and those of defendant before, during and afterthe incident. Several law enforcement officers testified about the investigationimmediately after the robbery, in which they interviewed the victim, the eyewitness andSmith, discovered two knives and items belonging to the victim on Smith's person and inthe vicinity, and pursued and apprehended defendant. Contrary to defendant's claim,Smith's accomplice testimony was fully corroborated by physical evidence and witnesstestimony connecting defendant with the commission of the robbery (see CPL60.22 [1]; People v Reome,15 NY3d 188, 191-192 [2010]; People v Matthews, 101 AD3d 1363, 1365 [2012], lvdenied 20 NY3d 1101 [2013]). According deference to the jury's credibilityassessments and viewing the evidence in a neutral light, the verdict was not against theweight of the evidence (seePeople v Toye, 107 AD3d 1149, 1151 [2013]; People v Mathis, 60AD3d at 1146-1147).
Finally, defendant contends that he did not receive the effective assistance ofcounsel. Although County Court expressed concern before trial over the unexplainedfailure of defendant's first attorney to file timely pretrial motions, defendant obtainedrelief—including the Dunaway hearing—by moving pro se.Thereafter, he retained new counsel whose effective pretrial representation includedobtaining the Wade hearing. The record does not support defendant's claims thathis counsel failed to sufficiently explore alleged conflicting evidence pertaining to themale suspect's skin color or conducted an inadequate pretrial investigation. Counsel'salleged trial errors in eliciting incriminating testimony from Smith, revealing defendant'sstatus as a parolee, and referring to his race were strategic efforts to discredit Smith,explain defendant's actions in hiding from police and challenge his identification. Whiledefendant raises other alleged errors, effective assistance requires "reasonablecompetence, not perfect representation" (People v Modica, 64 NY2d 828, 829[1985] [internal quotation marks and citation omitted]). Viewed in its totality, the recordreveals that counsel pursued a coherent theory of defense premised on misidentification,vigorously cross-examined witnesses, made effective objections, secured an acquittal onone charge and otherwise provided defendant with meaningful representation (seePeople v Baldi, 54 NY2d 137, 147 [1981]; People v Estella, 107 AD3d 1029, 1033 [2013], lvdenied 21 NY3d 1042 [2013]; People v Jones, 101 AD3d 1241, 1242-1243 [2012], lvdenied 21 NY3d 944 [2013]).
Defendant's remaining argument has been examined and found to be without merit.
Stein, J.P., McCarthy and Spain, JJ., concur. Ordered that the judgment isaffirmed.[*4]
Footnote 1: The victim did nottestify at the Wade hearing, but stated at trial that she was not sure whetherdefendant was handcuffed.
Footnote 2: Notably, this conferenceaddressed "only questions of law or procedure" (People v Horne, 97 NY2d 404,416 [2002] [internal quotation marks and citation omitted]; see People v Horan,290 AD2d 880, 883-884 [2002], lv denied 98 NY2d 638 [2002]).
Footnote 3: Defendant executed twodocuments that separately waived his participation in sidebar discussions of potentialjuror bias and those addressing points of law.