| People v Marryshow |
| 2018 NY Slip Op 04600 [162 AD3d 1313] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jahson Marryshow, Also Known as Jahson Solomon,Appellant. |
Russell A. Schindler, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered September 8, 2015, upon a verdict convicting defendant of the crimes of robbery in thefirst degree, arson in the third degree and grand larceny in the fourth degree.
In November 2010, defendant was charged by indictment with robbery in the first degree,arson in the third degree and grand larceny in the fourth degree. The charges arose out ofallegations that, on a morning in June 2010, defendant stole a dark green 2001 Honda Accordfrom the home of an elderly couple, set fire to a barn in the Town of Woodstock, Ulster Countyand, while the authorities were responding to the fire, robbed a nearby bank at gunpoint, makingoff with roughly $25,000. In June 2015, following his apprehension in Oregon by a United Statesmarshal, defendant stood trial before a jury, at the conclusion of which he was found guilty ascharged. County Court subsequently sentenced him, as a second felony offender, to an aggregateprison term of 15 years, followed by five years of postrelease supervision. Defendant nowappeals, and we affirm.
Initially, we reject defendant's assertion that Monique Mikell, a witness for the prosecution,should not have been permitted to identify him at trial as the individual she saw driving a greenHonda at roughly 7:00 a.m. on the morning in question because her in-court identification wasthe product of an unduly suggestive photo array. A photo array is unduly [*2]suggestive if some feature or characteristic of one of the depictedindividuals or photographs is so unique or distinctive that it draws the viewer's attention to thatphotograph, thereby indicating that the police have selected that particular individual (see People v Pleasant, 149 AD3d1257, 1257 [2017], lv denied 30 NY3d 1022 [2017]; People v Al Haideri, 141 AD3d742, 743 [2016], lv denied 28 NY3d 1025 [2016]; People v Smith, 122 AD3d 1162,1163 [2014]). While it is not required that the individuals in a photo array be nearly identical tothe defendant, their characteristics must be "sufficiently similar" to those of the defendant, "so asto not 'create a substantial likelihood that the defendant would be singled out foridentification' " (People vLanier, 130 AD3d 1310, 1312 [2015], lv denied 26 NY3d 1009 [2015], quotingPeople v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; see People v Cole, 150 AD3d1476, 1477-1478 [2017]). The People bear the initial burden of establishing thereasonableness of police conduct and the absence of any undue suggestiveness; however, thedefendant has the ultimate burden of proving that the pretrial identification procedure was undulysuggestive (see People v Delamota,18 NY3d 107, 118 [2011]; People v Chipp, 75 NY2d at 335; People vSullivan, 300 AD2d 689, 690 [2002], lv denied 100 NY2d 587 [2003]).
Our review of the evidence presented at the Wade hearing, as well as the photo arrayincluding defendant, reveals that neither the pretrial identification procedure nor the photo arraywas unduly suggestive. Specifically, the evidence established that, at the start of her interview,Mikell was shown two separate photo arrays, each depicting six male individuals who wereselected for inclusion in the arrays through the use of a computer program.[FN*] The evidence demonstrated thatdefendant was included only in the second photo array and that Mikell did not see the secondphoto array until after she reviewed the first photo array—which was built around adifferent person of interest—and affirmatively stated that she did not recognize anyone. Asfurther established by the testimony, after being shown the second photo array, Mikell indicatedthat she recognized defendant as the person who drove past her on the morning of June 30, 2010in a green Honda.
The photo array itself depicted six males, who all appeared to be of the same general age andstature and had similar hair length and styles, eye color and shape and facial expressions. Inaddition, each individual was dressed in a prison jumpsuit and wore a white shirt underneath.Five of the six photographs, including defendant's photograph, were taken in front of a block wallthat were either identical or substantially similar in color, while the remaining photograph had adifferent, but similarly colored, backdrop. Furthermore, the photographs were "cropped in amanner that render[ed] height comparisons speculative" (People v Lanier, 130 AD3d at1313), and they all appeared to have been taken from approximately the same distance. Whiledefendant argues that the photo array was unduly suggestive because there were no other blackindividuals depicted, we note that all six men were of varying skin tones and that defendant'sskin color was not so distinctive that it would have drawn the viewer's attention to thatphotograph, so as to create a substantial likelihood that he would be singled out for identification(see People v Quintana, 159 AD3d1122, 1127 [2018], lv denied — NY3d — [May 30, 2018]; People v Ruiz, 148 AD3d 1212,1214 [2017], lv denied 30 NY3d 983 [2017]; People v [*3]Matthews, 101 AD3d1363, 1364 [2012], lv denied 20 NY3d 1101 [2013]). Accordingly, upon our reviewof both the pretrial identification procedure and the photo array, we are satisfied that neither wasunduly suggestive (see People v Al Haideri, 141 AD3d at 743; People v Taylor,300 AD2d 746, 747-748 [2002], lv denied 2 NY3d 746 [2004]). As County Courtproperly denied the motion to suppress Mikell's pretrial identification of defendant, we find noerror in allowing Mikell to identify defendant in court (see People v Asai, 66 AD3d 1138, 1140-1141 [2009]).
Defendant also challenges the robbery and arson convictions as being unsupported by legallysufficient evidence and against the weight of the evidence. Specifically, defendant argues that thePeople failed to establish his identity as the perpetrator of those crimes beyond a reasonabledoubt. As relevant here, "[a] person is guilty of robbery in the first degree when he [or she]forcibly steals property and when, in the course of the commission of the crime . . .,he [or she] . . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun,machine gun or other firearm" (Penal Law § 160.15 [4]). Additionally, "[a] personis guilty of arson in the third degree when he [or she] intentionally damages a building. . . by starting a fire" (Penal Law § 150.10 [1]).
At trial, defendant did not strongly contest the evidence establishing his identity as theperpetrator of grand larceny in the fourth degree; nor does he challenge the evidence supportingthat conviction on appeal. Indeed, the trial evidence established that, at 7:00 a.m. on the day inquestion, an elderly woman looked out from her kitchen window and observed a "great tallfellow" get into the dark green 2001 Honda Accord that belonged to her and her husband and"take off" down her driveway. Mikell, who was walking her dog on the elderly woman's streetaround 7:00 a.m. that same morning, testified that she observed an individual—whom sheultimately identified as defendant—driving at a high rate of speed in a green Honda. BothDNA and fingerprint evidence placed defendant in the stolen Honda Accord, which was locatedroughly 2
With respect to defendant's convictions for robbery in the first degree and arson in the thirddegree, the People's case was largely circumstantial, as they solely relied on eyewitness testimonyto establish defendant's identity as the arsonist and bank robber. To that end, the People presentedthe testimony of a volunteer firefighter, who testified that, around 9:00 a.m. on the day inquestion, he observed a green sedan parked across the street from a barn on Route 212 and thenspotted a masked individual, who he could not identify as male or female, standing in the weeds,holding a red gas can. He described the masked individual as roughly six feet tall and slender andstated that the person was wearing a dark jacket and sweatpants, a hood and orange gloves. ThePeople also offered the testimony of another eyewitness who was driving on Route 212, near thebarn, around the same time. This eyewitness testified that she observed a tall, slender individualdressed in a black jacket and "grayish" sweatpants run into the road carrying a red gas can and getinto a dark green Honda sedan. She stated that, although she did not see the individual's face, sheassumed that the person was a man because of his "height and general build." The evidenceestablished that the fire department responded to a fire at the barn around 9:00 a.m. that day andthat a subsequent investigation into the cause of the fire revealed that gas was used as anaccelerant.
As to the bank robbery, the People relied on the testimony of three eyewitnesses: a motoristwho observed a dark-colored Honda turn into the bank, a bank teller and the bank [*4]manager. The motorist testified that, as he was driving to workaround 9:10 a.m., he observed a dark-colored Honda pull up behind him at an intersection andnoticed that the driver, who was wearing ski goggles and some sort of winter mask or scarf,appeared to be "anxious." Both the bank teller and the bank manager gave similar descriptions ofthe robber. In particular, the teller testified that a man came into the bank yelling, swearing andbrandishing a black handgun and he was dressed in "winter clothes," including long pants, apeacoat, a gray cap, orange gloves, goggles and a mask. Similarly, the manager testified that therobber stood roughly 6 feet 2 inches tall and wore a mask, ski goggles, a hooded sweatshirt, a hat,a peacoat and orange gloves. He stated that, following the robbery, he observed the individualdrive off in a dark green late model Honda Accord. It was further established that the bankmanager was familiar with defendant, having attended high school with him and interacted withhim as a customer at the bank, and that the manager considered both defendant and the robber tohave a high-pitched voice. Significantly, the jurors saw surveillance video of the bank robberyfrom different angles and were able to draw their own conclusions regarding the bank robber'sappearance, including attire, height, stature and mannerisms (see generally People v Tucker, 87 AD3d 1077, 1085 [2011]).Finally, as noted above, the stolen Honda Accord was ultimately found with its engine running20 minutes after the bank robbery, several hundred yards from defendant's family home.
In our view, the foregoing circumstantial evidence, viewed in the light most favorable to thePeople (see People v Bleakley, 69 NY2d 490, 494 [1987]), was legally sufficient toestablish defendant's identity as the perpetrator of the arson and the bank robbery beyond areasonable doubt (see People vCallicut, 101 AD3d 1256, 1259-1260 [2012], lv denied 20 NY3d 1096 [2013]).Although defendant was not positively identified as the masked arsonist and bank robber, we aresatisfied that the People presented sufficient circumstantial evidence from which the jury couldreasonably infer that defendant set the barn fire and committed the bank robbery after stealing theHonda Accord and, thus, reject defendant's theory that a second person stole the Honda Accordand committed those crimes (see People v Callicut, 101 AD3d at 1259-1260; People v Brown, 92 AD3d 1216,1217 [2012], lv denied 18 NY3d 992 [2012]; People v Roraback, 242 AD2d 400,401-402 [1997], lv denied 91 NY2d 879 [1997]).
As for defendant's weight of the evidence challenge, it would not have been unreasonable forthe jury to have reached a different verdict on the robbery and arson charges, considering that theproof establishing defendant's identity as the perpetrator was largely circumstantial and theinconsistencies in the eyewitnesses' accounts brought out on cross-examination. However, anyinconsistencies and gaps in the testimony posed credibility issues for the jury, which it ultimatelyresolved in favor of the People (seePeople v Young, 74 AD3d 1471, 1472 [2010], lv denied 15 NY3d 811 [2010]).Thus, viewing the evidence in a neutral light, weighing the probative force of the conflictingtestimony and considering the relative strength of the inferences to be drawn therefrom, all whiledeferring to the jury's credibility determinations (see People v Danielson, 9 NY3d 342, 348 [2007]), we find thatdefendant's convictions for robbery in the first degree and arson in the third degree are in accordwith the weight of the evidence (seePeople v Robles, 115 AD3d 30, 32-33 [2014], lv denied 22 NY3d 1202 [2014];People v Brown, 92 AD3d at 1217; People v Young, 74 AD3d at 1472).
To the extent that we have not expressly addressed any of defendant's contentions, they havebeen examined and found to be without merit.
Egan Jr., J.P., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although the detective whocompiled the photo arrays died in the five years that passed between Mikell's interview and theWade hearing, another detective involved in the investigation testified that he hadpersonal knowledge as to how the photo arrays were generated.