| People v Bryant |
| 2007 NY Slip Op 07182 [43 AD3d 1377] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Cole Bryant,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered April 13, 2004. The judgment convicted defendant, upon a jury verdict, of sodomy inthe first degree (two counts).
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countsof sodomy in the first degree (Penal Law former § 130.50 [1], [3]), defendant contends thatSupreme Court erred in denying his motion to reopen the Wade hearing after the victimtestified at trial that one of the police officers who showed her a photo array pointed to one of thephotographs and said, "[I]sn't that the guy in one of those pictures." In denying defendant'smotion, the court stated that the victim "seemed somewhat confused" during her testimony andruled that it would allow defense counsel to point out the identification issue to the jury duringsummation. The court also permitted defense counsel to cross-examine the police officersinvolved in the identification procedure, and both officers denied directing the victim to select aparticular photograph. We therefore conclude that the court did not abuse its discretion indenying defendant's motion to reopen the Wade hearing. In any event, there isoverwhelming evidence of defendant's guilt and no significant probability that defendantotherwise would have been acquitted, and thus any error in the court's denial of defendant'smotion is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
We further reject the contention of defendant that the court erred in allowing a witness totestify that she saw him shortly before the incident standing across from the victim's school andlooking toward the playground. Defendant's actions, while suspect, did not rise to the level of aprior bad act (see People v Jones, 293 AD2d 489 [2002], lv denied 98 NY2d 652[2002]), and thus there was no need to apply the Molineux factors to determine theadmissibility of the testimony. Also contrary to defendant's contention, the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).The jury was entitled to resolve credibility issues in favor of the People and thus to credit thetestimony of the victim and the investigating police officers (see People v Walek, 28 AD3d 1246 [2006], lv denied 7NY3d 764 [2006]). The contention of [*2]defendant that his dueprocess rights were violated because the police did not electronically record the station houseinterrogations is without merit (seePeople v Williams, 39 AD3d 1200 [2007]). Finally, the sentence is not unduly harsh orsevere. Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.