| People v Lanier |
| 2015 NY Slip Op 06268 [130 AD3d 1310] |
| July 23, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vShateek Lanier, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered April 4, 2013, upon a verdict convicting defendant of the crimesof attempted murder in the second degree, attempted assault in the first degree, criminaluse of a firearm in the first degree and criminal possession of a weapon in the seconddegree (two counts).
Defendant was indicted for the crimes of attempted murder in the second degree,assault in the first degree, criminal use of a firearm in the first degree and criminalpossession of a weapon in the second degree (two counts) in connection with a shootingthat occurred in the City of Troy, Rensselaer County in May 2012. Prior to trial, thePeople moved to amend count two of the indictment to charge defendant with attemptedassault in the first degree instead of assault in the first degree, which motion CountyCourt granted. Following a jury trial, defendant was convicted as charged andsubsequently sentenced to an aggregate prison term of 20 years, with five years ofpostrelease supervision. Defendant now appeals.
Defendant's convictions for attempted murder in the second degree and attemptedassault in the first degree were neither based on insufficient evidence nor against theweight of the evidence. In order for defendant to be found guilty of attempted murder inthe second degree, the People were required to prove that, "[w]ith intent to cause the deathof another person," defendant attempted to cause the death of such person (Penal Law§§ 110.00, 125.25 [1]). As to the charge of attempted assault in thefirst degree, the People were required to prove that, "[w]ith intent to cause seriousphysical injury to another person," defendant attempted to cause "such injury to suchperson or to a third person by means of a deadly weapon or a dangerous instrument"(Penal Law §§ 110.00, 120.10 [1]).
[*2] As is relevant to these inquiries, two eyewitnessestestified that they observed the shooting and further identified defendant as the personwho fired a handgun at the victim. Various evidence established that a total of eight shotswere fired at the victim, three of which struck him. This evidence was legally sufficientfor defendant's convictions of attempted murder in the first degree and attempted assaultin the first degree (see People vAndrews, 127 AD3d 1417, 1420 [2015], lv denied 25 NY3d1159 [June 19, 2015]; People v Stewart, 68 AD3d 1438, 1439 [2009], lvdenied 14 NY3d 773 [2010]). Although defendant argues that the testimony of theeyewitnesses who identified him as the shooter should be discredited for variousreasons—including lighting conditions, the witnesses' alleged motivations tofabricate the identification and certain discrepancies between their testimony and theirprior statements—the jury was able to consider each of these issues now raisedand chose to credit the identification of defendant as the shooter. Given the jury's uniqueopportunity to "view the witnesses, hear the testimony and observe demeanor" (People v Romero, 7 NY3d633, 644 [2006] [internal quotation marks and citation omitted]), we defer to theircredibility determination and conclude that defendant's convictions were not against theweight of the evidence (see People v Stewart, 68 AD3d at 1439).
County Court did not err in denying defendant's motion to dismiss the indictment dueto the People's alleged failure to provide defendant with adequate notice of grand juryproceedings. The People are required to notify a defendant of a pending grand juryproceeding when, as is the case here, a defendant has been arraigned on a "currentlyundisposed of felony complaint" (CPL 190.50 [5] [a]). Such notice must afford "thedefendant a reasonable time to exercise his [or her] right to appear as a witness" (CPL190.50 [5] [a]; see People v Smith, 87 NY2d 715, 720 [1996]).
The uncontested facts establish that the Rensselaer County Public Defender's officeinitially represented defendant, and the People notified that office on June 4, 2012 thatgrand jury presentment would begin the following day. Shortly thereafter, the PublicDefender's office requested that new counsel be assigned to defendant due to a conflictof interest, and notice of such fact was provided to the People. This transition inrepresentation apparently led to a delay in the aforementioned information beingprovided to defendant, and defendant was informed on June 5, 2012, by his new counsel,that grand jury presentment was currently ongoing. At approximately 2:00 p.m. that sameday, defendant was provided with further notice from the People that grand jurypresentment would also take place on June 7, 2012, beginning at 9:30 a.m. Defendantreceived that information either shortly before or simultaneous to having an opportunityto consult with counsel.
Given that CPL 190.50 (5) (a) expressly contemplates that the People may provide adefendant notice that a grand jury presentment is "in progress," defendant had no specificright to adequate notice in relationship to the commencement of such presentment.Rather, the appropriate time line against which to assess defendant's notice is the latestopportunity that he could have exercised his right to appear as a witness (seegenerally People v Bass, 255 AD2d 689, 692 [1998], lv denied 93 NY2d 966[1999]). Further, contrary to defendant's contention, he was not entitled to receivediscovery materials prior to the grand jury presentment so as to make a more informeddecision as to whether to provide testimony (see People v Sawyer, 96 NY2d 815,817 [2001]). Given that defendant had approximately two days notice before the finalday of grand jury presentment and also had an opportunity to consult with counsel,County Court did not err in denying defendant's motion to dismiss the indictment on thisground (see id. at 817).
County Court did not err in denying defendant's motion to suppress the pretrialidentifications. "[A] pretrial identification that is unduly suggestive violates due processand is [*3]therefore inadmissible against the defendant"(People v Smith, 122 AD3d1162, 1163 [2014]; see People v Chipp, 75 NY2d 327, 335 [1990], certdenied 498 US 833 [1990]). Accordingly, the relevant characteristics of theindividuals included in a photograph array must be sufficiently similar so as to not"create a substantial likelihood that the defendant would be singled out for identification"(People v Chipp, 75 NY2d at 336; see People v Matthews, 101 AD3d 1363, 1364 [2012],lv denied 20 NY3d 1101 [2013]; People v McDonald, 306 AD2d 696,697 [2003]). The People have the initial burden of establishing that the police actedreasonably and that the pretrial identification procedures were not unduly suggestive;however, it is the defendant who must ultimately prove that the procedure was undulysuggestive (see People v Chipp, 75 NY2d at 335; People v Smith, 122AD3d at 1162).
Defendant limits his argument to the contention that the two photo arrays[FN*] respectively shown to thetwo witnesses who thereafter identified defendant's picture were unduly suggestive,because only defendant's photograph presented the combination of age, size and clothingthat fit the characteristics previously attributed to the shooter. Our review of the arraysreveals that multiple photographs depicted men wearing hoodies, the same garment theshooter had been reported as wearing. Further, we discern no significant dissimilarity asto the ages of the men depicted, and the photographs are cropped in a manner thatrenders height comparisons speculative. Accordingly, because the arrays do not create asubstantial likelihood that defendant would be picked out, County Court properly denieddefendant's motion to suppress the pretrial identifications (see People vMatthews, 101 AD3d at 1364; People v Coleman, 2 AD3d 1045, 1046 [2003]; Peoplev McDonald, 306 AD2d at 697).
County Court did not abuse its discretion in regard to its Sandoval ruling.Possession of burglar's tools is a conviction involving theft (see People v Vetrano, 88AD3d 750, 750-751 [2011]) and such a conviction is "particularly probative ofcredibility" (People vFomby, 101 AD3d 1355, 1357 [2012]; see People v Lemke, 58 AD3d1078, 1078-1079 [2009]), and not one particularly similar to the charges here.Accordingly, County Court did not abuse its discretion in permitting cross-examinationas to the fact that defendant had such a conviction, but not as to underlying facts or theattendant sentencing (see People v Fomby, 101 AD3d at 1356-1357; People vVetrano, 88 AD3d at 750-751).
Finally, defendant's sentence was neither harsh nor excessive. Defendant shot thevictim three times and continued to fire at him as the victim attempted to flee. Further,the particular commission of these crimes included defendant endangering the lives ofthose community members who were near the scene of the shooting. Given these facts,we do not perceive any abuse of discretion or extraordinary circumstances that wouldwarrant modification of defendant's sentence (see People v Rabideau, 82 AD3d 1283, 1287 [2011], lvdenied 17 NY3d 799 [2011]; People v Lozada, 35 AD3d 969, 971 [2006], lvdenied 8 NY3d 947 [2007]; People v Arnold, 32 AD3d 1051, 1051 [2006]).
Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Each of the two arrayscontains the same photographs, although in a different order.