| People v Al Haideri |
| 2016 NY Slip Op 05398 [141 AD3d 742] |
| July 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Salam Al Haideri, Appellant. |
Carolyn B. George, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (McDonough, J.),rendered May 16, 2014 in Albany County, upon a verdict convicting defendant of thecrimes of predatory sexual assault and rape in the first degree.
At about 2:00 a.m. on June 2, 2014, the teenage victim left a bar in the City ofAlbany after becoming separated from her friends and accepted a ride from defendantand his friend, who were strangers to her. They left in a car driven by the friend. Duringthe ride, defendant and the victim sat in the back seat and, after the victim resisteddefendant's advances, they began to argue. The driver stopped the vehicle and ordereddefendant out, and defendant then dragged the victim out of the car and the driver droveaway, leaving them at a roadside curb. The victim recounted that defendant then forcedher behind dumpsters at an adjacent business, where he ordered her on to her knees,grabbed her head and repeatedly slammed it against the cement or concrete parking lotsurface and then forcibly raped her. The victim, covered in blood, fled to a nearby gasstation where police were summoned, and she was subsequently hospitalized for herinjuries. She later identified defendant from a photo array, and a forensic examination ofthe victim's clothing and samples of evidence from the rape kit yielded a match tosamples of defendant's DNA. Following a jury trial, defendant was convicted ofpredatory sexual assault and rape in the first degree as charged in an indictment andsentenced to concurrent prison terms of 22 years to life for the predatory sexual assaultconviction and 22 years with 20 years of postrelease supervision for the rape in the firstdegree conviction. Defendant appeals.
[*2] Initially, Supreme Court did not err in denying defendant's motion to suppress thevictim's pretrial identification of him from a police-arranged photo array, rejectingdefendant's claim that it was unduly suggestive. "[A] photo array is unduly suggestive ifit depicts a unique characteristic which draws the viewer's attention so as to indicate thatthe police have selected a particular individual" (People v Smith, 122 AD3d 1162, 1163 [2014] [internalquotation marks and citation omitted]). While "[t]he People have the initial burden ofestablishing that the police acted reasonably and that the pretrial identificationprocedures were not unduly suggestive[,] . . . it is the defendant who mustultimately prove that the procedure was unduly suggestive" (People v Lanier, 130 AD3d1310, 1312-1313 [2015], lv denied 26 NY3d 1009 [2015]). Defendant'sspecific claim is that the other men in the photo array were Caucasian while he is ofMiddle-Eastern descent with darker skin tone. Our review of the photo array reveals sixmen who appear to be of similar ages, all with dark hair and varying skins tones, severalvery similar to defendant's skin tone. We agree with Supreme Court's finding that thecharacteristics of the men in the photographs, including their skin tone, were sufficientlysimilar and did not create a "substantial likelihood" that defendant would be singled outfor identification by the victim (People v Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990]; see People v Lanier, 130 AD3d at 1312;People v Matthews, 101AD3d 1363, 1364 [2012], lv denied 20 NY3d 1101 [2013]; People v Yousef, 8 AD3d820, 821 [2004], lv denied 3 NY3d 743 [2004]).
With regard to defendant's related claim that the victim initially identified anindividual other than defendant as the assailant, the record belies this claim. Testimony atthe Wade hearing established that when a police investigator showed the photoarray to the victim at the hospital, she "immediately" pointed to defendant's picture andtwice identified him as the person who had sexually assaulted her; she then circleddefendant's picture and placed her initials above it. When asked for the number of thephotograph, the victim stated photo No. 5, which was the number below defendant'sphotograph, rather than the correct number associated with defendant's photograph, No.2, which appeared above defendant's photograph.[FN1] Notwithstanding this ministerial error,the testimony established both the reasonableness of the police conduct and the lack ofany undue suggestiveness or error in the identification procedure (see People vChipp, 75 NY2d at 335). Accordingly, defendant's motion to suppress the pretrialidentification was properly denied.
Contrary to defendant's contention, his conviction of predatory sexual assault issupported by legally sufficient evidence. To establish this crime, the People wererequired to prove, as relevant here, that defendant committed the crime of rape in the firstdegree and, in the course of that crime or immediate flight therefrom, he "use[d] orthreaten[ed] the immediate use of a dangerous instrument" (Penal Law§ 130.95 [1] [b]). Defendant's sole argument on this point is that the proofdid not establish that he used a dangerous instrument, which is defined as "anyinstrument, article or substance . . . which, under the circumstances in whichit is used, [*3]attempted to be used or threatened to beused, is readily capable of causing death or other serious physical injury" (Penal Law§ 10.00 [13]; see People v Carter, 53 NY2d 113, 116 [1981]; People v Hill, 130 AD3d1305, 1305-1306 [2015], lv denied 27 NY3d 999 [2016]; People v Taylor, 118 AD3d1044, 1045 [2014], lv denied 23 NY3d 1043 [2014]). To qualify as adangerous instrument, the object need not be inherently dangerous but, rather, it musthave been "used in a manner which render[ed] it readily capable of causing seriousphysical injury" (People v Carter, 53 NY2d at 116 [emphasis omitted]; see People v McElroy, 139AD3d 980, 981 [2016]; People v Ray, 273 AD2d 611, 613 [2000]). Concreteand cement surfaces and sidewalks have been held to constitute dangerous instrumentswhen used in such a manner (see People v Galvin, 65 NY2d 761, 762 [1985];People v McElroy, 139 AD3d at 981; see also People v Warren, 98 AD3d 634, 636 [2012];People v Melville, 298 AD2d 601, 601-602 [2002], lv denied 99 NY2d617 [2003]). Viewing the evidence in the light most favorable to the People, as we mustwhen considering a challenge to the legal sufficiency of trial evidence (see People v Ramos, 19 NY3d133, 136 [2012]), we find that, by repeatedly and forcefully smashing the victim'sface into the concrete or cement surface, defendant used that surface in a manner readilycapable of causing death or serious injury to her. Crediting the victim's account, incombination with the medical testimony as to her injuries, which included trauma andfractures to her face, the evidence was legally sufficient to support defendant's convictionof predatory sexual assault.
However, defendant is correct that rape in the first degree is a lesser included offenseof predatory sexual assault in that the former is an element of the latter and defendantcould not have committed the latter without also committing the former (see CPL1.20 [37]; 300.30 [4]; Penal Law §§ 130.35 [1]; 130.95 [1] [b];People v Lee, 39 NY2d 388, 390 [1976]; People v Earl, 133 AD3d 875, 875 [2015], lvdenied 26 NY3d 1144 [2016]; People v Ortiz, 95 AD3d 1140, 1141 [2012], lvdenied 19 NY3d 999 [2012]). Since the conviction of the greater count, predatorysexual assault, operates as a dismissal of the lesser count (see CPL 300.40 [3][b]), we reverse defendant's conviction of rape in the first degree and vacate the sentenceimposed thereon (see People v Earl, 133 AD3d at 875).[FN2] Defendant's remaining contentions arewithout merit.
Lahtinen, J.P., Garry, Clark and Mulvey, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing defendant's conviction of rape in the first degree undercount 2 of the indictment; said count dismissed and the sentence imposed thereonvacated; and, as so modified, affirmed.
Footnote 1:The photo array consistsof two rows, each with three pictures. Defendant's photograph appeared as the secondpicture in the top row, which had a No. 2 above it. The middle photograph in the bottomrow—beneath defendant's picture—had a No. 5 above it. When the victimcircled defendant's picture, she circled both the No. 2 above it and the No. 5 below it, butthere is no question that she identified defendant and circled his picture. Although thepolice investigator recorded that the victim had identified photo No. 5, the form was latercorrected in the victim's presence.
Footnote 2:Although defendant didnot request that those counts be charged "in the alternative only" (CPL 300.40 [3] [b]) orobject to the charge as given, the conviction of the lesser count must be dismissed underCPL 300.40 (3) (b) (see People v Lee, 39 NY2d at 390; People v Hayes, 104 AD3d1050, 1052 [2013], lv denied 22 NY3d 1041 [2013]; People vMitchell, 216 AD2d 863, 864 [1995], lv denied 86 NY2d 798 [1995]).