| People v Wilson |
| 2007 NY Slip Op 07220 [43 AD3d 1409] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Louis Wilson,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered February1, 2006. The judgment convicted defendant, upon a jury verdict, of attempted murder in thesecond degree, assault in the first degree, and criminal possession of a weapon in the seconddegree, and, upon his plea of guilty, of criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault inthe first degree (§ 120.10 [1]), and criminal possession of a weapon in the second degree(§ 265.03 [2]), and, upon his plea of guilty, of criminal possession of a weapon in the thirddegree (§ 265.02 [4]).
Contrary to the contention of defendant, we conclude that County Court did not err inrefusing to suppress the victim's in-court identification of him. "[I]t is well-settled that even whenan identification is the product of a suggestive pretrial identification procedure, a witness willnonetheless be permitted to identify a defendant in court if that identification is based upon anindependent source" (People v Campbell, 200 AD2d 624, 625 [1994], lv denied83 NY2d 869 [1994]). Here, the victim testified that he had seen defendant on severaloccasions prior to the day of the shooting. Further, he had seen defendant on the day of theshooting, both on the porch of the house across the street during daylight hours and when theyargued across the street from each other. He also observed defendant that day when, inter alia,defendant pulled up to the victim's car in his own car and argued with the victim. Finally, thevictim saw defendant as he drove up in his vehicle and shot him. The victim observed defendantat least three times on the day in question prior to the actual shooting. There is thus clear andconvincing evidence to support the court's determination that the victim had an independent basisfor his in-court identification of defendant (see People v Mikel, 237 AD2d 982 [1997];see generally People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833[1990]). Defendant failed to preserve for our review his further contention that he was denied afair trial because the prosecutor cross-examined his alibi witnesses without [*2]laying a proper foundation (see CPL 470.05 [2]) and, in anyevent, that contention lacks merit. The prosecutor laid a proper foundation for cross-examiningthose witnesses with respect to their failure to come forward with their alibi evidence byestablishing that they were aware of the nature of the charges pending against defendant, hadreason to believe that they possessed exculpatory information, had reasonable motives for actingto exonerate defendant, and were familiar with the means of making such information availableto law enforcement authorities (see People v Dawson, 50 NY2d 311, 321 [1980]).Defendant's further contention that the related jury charge invaded the province of the jury iswithout merit (see generally People v Farraro, 168 AD2d 996 [1990], lv denied77 NY2d 905 [1991]).
Defendant's contention that the prosecutor's reasons for exercising a peremptory challengewith respect to an African-American prospective juror were pretextual is unpreserved for ourreview because defendant failed to articulate any reasons supporting his belief that theprosecutor's explanations were pretextual (see People v Bodine, 283 AD2d 979 [2001],lv denied 96 NY2d 898 [2001]). In any event, the court properly determined thatdefendant did not meet "his 'ultimate burden of persuading the court that the [explanations] weremerely a pretext for intentional discrimination' " (People v Scott, 31 AD3d 1165, 1165 [2006], lv denied 7NY3d 851 [2006], quoting People v Smocum, 99 NY2d 418, 422 [2003]). Theprosecutor stated that, much like another prospective juror dismissed by him, the prospectivejuror was "involved" in a counseling-type setting and had the disposition of a social worker to"help" rather than to "prosecute."
We reject the further contention of defendant that the prosecutor intentionally provoked amistrial and thus that his retrial was barred by double jeopardy. Although the prosecutor failed toinstruct a police witness in accordance with the court's instructions that defendant's possession ofa gun should not be mentioned, that failure "does not constitute th[e] type of prosecutorialoverreaching . . . requiring the barring of reprosecution on the ground of doublejeopardy" (People v Copeland, 127 AD2d 846, 847 [1987]).
We reject defendant's further contention that the verdict is against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The victim and anotherprosecution witness testified that defendant pulled out a gun as he was sitting in the driver's seatof his car and fired two shots at the victim. "The jury was entitled to resolve issues of credibilityin favor of the People" (People vWalek, 28 AD3d 1246, 1246 [2006], lv denied 7 NY3d 764 [2006]), and weconclude that the jury did not fail to give the evidence the weight it should be accorded (seegenerally Bleakley, 69 NY2d at 495).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe. Wehave reviewed defendant's remaining contentions and conclude that they are without merit.
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of criminal possession of a weapon in the third degree under Penal Law §265.03 (2), and it must therefore be amended to reflect that he was convicted of criminalpossession of a weapon in the second degree (see generally People v Saxton, 32 AD3d 1286 [2006]).Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Pine, JJ.