| People v Spradlin |
| 2021 NY Slip Op 01449 [192 AD3d 1270] |
| March 11, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Benjamin Spradlin, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Colangelo, J. Appeals (1) from a judgment of the County Court of Tompkins County (Miller,J.), rendered April 6, 2018, convicting defendant upon his plea of guilty of the crime of robberyin the first degree, and (2) by permission, from an order of said court, entered May 7, 2019,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In December 2016, defendant was charged by indictment with robbery in the first degree,robbery in the second degree, burglary in the first degree, burglary in the second degree, criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree. The charges stemmed from allegations that defendant unlawfully entered a home locatedin the Town of Enfield, Tompkins County, and stole money from two victims at gunpoint, afterwhich time the victims identified defendant as the perpetrator in a show-up identificationprocedure. Prior to defendant's arrest, law enforcement identified defendant, who they suspectedwas the perpetrator, riding in the back seat of a pickup truck, stopped and searched that pickuptruck and seized a jacket matching the victims' description of the jacket that the perpetrator hadbeen wearing during the home invasion.
Defendant subsequently moved to suppress the identification as unduly suggestive, as well asthe stop and seizure of the pickup truck, his person and the jacket. Following a suppressionhearing, County Court found that, although the show-up procedure was unduly suggestive andevidence regarding the show-up was therefore inadmissible at trial, the People established byclear and convincing evidence that the victims had an independent recollection from the robberyto make an in-court identification of defendant at trial. County Court also denied that portion ofdefendant's motion seeking suppression of the results of the search and the seizure. Thereafter,defendant, in full satisfaction of the indictment, pleaded guilty to robbery in the first degree.Consistent with the terms of the plea agreement, defendant was sentenced, as a second felonyoffender, to a prison term of eight years to be followed by five years of postrelease supervision.Defendant's subsequent pro se motion pursuant to CPL 440.10 to vacate his judgment ofconviction was denied by County Court without a hearing. Defendant appeals from the judgmentof conviction and, by permission, from the denial of his CPL article 440 motion.
Defendant argues that, although County Court properly found that the show-up procedurewas unduly suggestive, County Court erred in finding that the People had proven by clear andconvincing evidence that the victims had an independent recollection of the perpetrator to makean in-court identification of defendant. We disagree. Where a defendant has shown that a pretrialidentification procedure was unduly suggestive, the People have the burden to demonstrate byclear and convincing evidence that [*2]an in-court identificationis derived from the witness's independent recollection—often called "independent source"evidence (People v Marte, 12 NY3d583, 586 [2009] [internal quotation marks and citation omitted], cert denied 559 US941 [2010]; see People v Adams, 53 NY2d 241, 251 [1981]; People v Gray, 135 AD3d 874,874 [2016], lv denied 27 NY3d 998 [2016]; People v Bateman, 124 AD3d 983, 984 [2015], lv denied 25NY3d 949 [2015]; People v Smith,122 AD3d 1162, 1163 [2014]). "The independent observation must be reliable under thetotality of the circumstances" (People v Gray, 135 AD3d at 874; see People v Adelman, 36 AD3d926, 927 [2007], lv denied 9 NY3d 872 [2007]). "[F]actors to be considered inevaluating the likelihood of misidentification include the opportunity of the witness to view thecriminal at the time of the crime, the witness' degree of attention, the accuracy of the witness'prior description of the criminal, the level of certainty demonstrated by the witness at theconfrontation, and the length of time between the crime and the confrontation" (Neil vBiggers, 409 US 188, 199-200 [1972]; see People v Carson, 122 AD3d 1391, 1391 [2014], lvdenied 25 NY3d 1161 [2015]).
Here, the victims' testimony at the suppression hearing established that, although theperpetrator had partially covered his lower face with his arm during the crime, they had observedhis gender, race, approximate height, multiple distinctive facial features, and unique jacket afterobserving him face-to-face, at very close range in well-lit surroundings during the commission ofthe crime, for a period of several minutes (see People v Small, 110 AD3d 1106, 1106-1107 [2013], lvdenied 22 NY3d 1043 [2013]; People v Lopez, 85 AD3d 1641, 1642 [2011], lv denied 17NY3d 860 [2011]). Defendant emphasized, both at the hearing and upon this appeal, that thevictims failed to note a distinctive facial feature, i.e., a flesh colored bump on his forehead. Uponreview, we do not find this argument persuasive, but instead agree with County Court that theinconsistencies in such details could be developed at trial and considered by the jury (seePeople v Adams, 53 NY2d at 251; People v Hosannah, 178 AD3d 1074, 1076 [2019], lvdenied 35 NY3d 942 [2020]). Accordingly, we find that the court, which reviewed theappropriate factors (see Neil v Biggers, 409 US at 199-200; People v Lopez, 85AD3d at 1641), properly determined that the People established by clear and convincingevidence that the victims' observations during the commission of the crime provided anindependent basis for their in-court identification of defendant (see People v Hosannah,178 AD3d at 1076; People vVazquez, 175 AD3d 1822, 1823 [2019], lv denied 34 NY3d 1082 [2019];People v Gray, 135 AD3d at 874; People v Small, 110 AD3d at 1106-1107;People v Lopez, 85 AD3d at 1642; People v Mosley, 110 AD2d 937, 938-939[1985]).[FN*]
We reject defendant's contention that County Court erred in denying his CPL 440.10 motion[*3]to vacate his judgment of conviction. "The purpose of a CPLarticle 440 motion is to inform a court of facts not reflected in the record and unknown at thetime of the judgment. By its very nature, the procedure cannot be used as a vehicle for anadditional appeal" (People vSpradlin, 188 AD3d 1454, 1460 [2020] [internal quotation marks, brackets and citationsomitted]). A motion to vacate a judgment of conviction made pursuant to CPL article 440 mustbe denied when "[t]he judgment is, at the time of the motion, appealable or pending on appeal,and sufficient facts appear on the record with respect to the ground or issue raised upon themotion to permit adequate review thereof upon such an appeal" (CPL 440.10 [2] [b]; see People v Drayton, 189 AD3d1888, 1891 [2020]; People v Spradlin, 188 AD3d at 1460; People v Trombley, 91 AD3d1197, 1203 [2012], lv denied 21 NY3d 914 [2013]). "Upon considering the merits ofthe motion, the court may deny it without conducting a hearing if . . . [t]he movingpapers do not allege any ground constituting legal basis for the motion" (CPL 440.30 [4] [a]; see People v Jones, 24 NY3d 623,634-635 [2014]; People v Spradlin, 188 AD3d at 1460). "[W]hether a defendant isentitled to a hearing on a CPL 440.10 motion is a discretionary determination . . .that is subject to [appellate] review for an abuse of discretion" (People v Jones, 24 NY3dat 635).
The majority of the claims that defendant raises in his appeal from the denial of his CPL440.10 motion—to wit, defendant's challenge to the permitted in-court identification andthe search and seizure of his person and the jacket—are based on facts that were eitherapparent from the face of the record to permit adequate review upon direct appeal (seeCPL 440.10 [2] [b]; People v Grays,162 AD3d 1224, 1228 [2018], lv denied 32 NY3d 1111 [2018]) or are not the propersubject of a CPL article 440 motion because his claims could have been raised on his directappeal, but defendant failed to do so (see CPL 440.10 [2] [c]; People v Bruno, 97 AD3d 986,987 [2012], lv denied 20 NY3d 931 [2012]). Accordingly, County Court did not err indenying defendant's CPL article 440 motion with respect to such claims. Finally, defendant'sclaim that his trial counsel rendered ineffective assistance because he had a conflict ofinterest—although premised upon factual allegations not reflected on the face of therecord—is based solely on defendant's own conclusory affidavit and is otherwiseunsubstantiated (see CPL 440.30 [4] [d]; People v Wright, 27 NY3d 516, 521 [2016]; People vSpradlin, 188 AD3d at 1460-1461; People v Brandon, 133 AD3d 901, 904 [2015], lv denied 27NY3d 992 [2016]; People vWoodard, 23 AD3d 771, 772 [2005], lv denied 6 NY3d 782 [2006]). Underthese circumstances, County Court did not abuse its discretion in denying defendant's CPL440.10 motion without a hearing. Defendant's remaining contentions, to the extent notspecifically addressed herein, have [*4]been considered andfound lacking in merit.
Garry, P.J., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *:To the extent that defendantargues that any in-court identification of him would have been tainted by wearing a prisonuniform during the suppression hearing at which he was identified, defendant waived this issue,as he neither lodged an objection at the hearing nor requested a remedy (see People v Jones, 187 AD3d612, 613-614 [2020], lv denied 36 NY3d 973 [2020]; People v Oliveri, 29 AD3d 330,332 [2006], lvs denied 7 NY3d 760, 792 [2006]).