| People v Mattis |
| 2007 NY Slip Op 09617 [46 AD3d 929] |
| December 6, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Trevor Mattis,Appellant. |
—[*1] Donald A. Williams, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Ulster County (Pulver, Jr., J.),rendered August 4, 2005, upon a verdict convicting defendant of the crimes of robbery in thesecond degree (two counts) and assault in the second degree.
Defendant was indicted for two counts of robbery in the second degree and one count ofassault in the second degree, stemming from an incident that occurred on November 29, 2004 inthe City of Kingston, Ulster County. After a jury trial, defendant was convicted as charged andsentenced to concurrent prison terms of six years for each robbery conviction and four years forthe assault conviction, with a period of postrelease supervision. Defendant appeals.
Trial testimony revealed that on November 29, 2004, at approximately 8:45 p.m., the victimleft her apartment building to go to the store to purchase diapers and cigarettes. Once outside thebuilding, she was approached by defendant and codefendant Willie Pace. They asked her if shewas "looking," which she understood as a query about whether she wanted to purchase drugs.When she declined, defendant forcibly removed a $20 bill from her hand, pushed her to theground and punched her, causing her to sustain a broken nose, two black eyes, the loss of severalteeth and the exacerbation of a previous back injury. She nonetheless got up, prompting Pace tocomment, "Trev, I think you picked the wrong person." After either defendant or Pace tookanother $20 bill from the victim's person, they fled. The victim returned to her apartment [*2]and called 911.
Officer Aaron Fitzgerald and his partner quickly arrived at the victim's apartment where theyfound her bleeding from the nose and mouth. She gave a full description of her assailants, whichwas broadcasted over the police radio. Officer Norman Good and his partner spotted defendantand Pace within blocks of the victim's apartment building. Since defendant specifically fit thevictim's description, Good approached them, conducted a pat-down search of defendant andasked him if he had any money. When defendant responded that he had $40, Good obtained hisconsent to check his pocket. He removed two $20 bills, examined and replaced them andpermitted defendant and Pace to leave. When Good received another radio message explainingthat two $20 bills were taken from the victim, Good relocated defendant and Pace and askedthem to participate in a nearby showup. The victim was transported to defendant's location byambulance where she identified them from the vehicle.
Contrary to defendant's contention, we fail to find County Court's suppression ruling clearlyerroneous (see People v Williams,25 AD3d 927, 928 [2006], lv denied 6 NY3d 840 [2006]; People v Duncan,279 AD2d 887, 888 [2001], lv denied 96 NY2d 828 [2001]). To be sure, showupidentification procedures are generally disfavored, absent exigent circumstances. They are,however, permissible when they are "reasonable under the circumstances—that is, whenconducted in close geographic and temporal proximity to the crime—and the procedureused was not unduly suggestive" (People v Brisco, 99 NY2d 596, 597 [2003]; see People v Starks, 37 AD3d 863,865 [2007]; People v Martinez, 9AD3d 679, 681 [2004], lv denied 3 NY3d 709 [2004]). Under the circumstancespresented and considering the suppression testimony of Fitzgerald and Good, we agree that theshowup identification was admissible (see People v August, 33 AD3d 1046, 1048-1049 [2006], lvdenied 8 NY3d 878 [2007]; Peoplev Golston, 13 AD3d 887, 889 [2004], lv denied 5 NY3d 789 [2005]).
Defendant's assertions that the victim's credibility and the identification of defendant wereimproperly bolstered through law enforcement testimony regarding her identification during theshowup are not preserved for our review (see CPL 470.05 [2]; People v Carter,249 AD2d 773, 773 [1998], lv denied 92 NY2d 923 [1998]). Moreover, the error, if any,did not deprive defendant of a fair trial so as to trigger our interest of justice jurisdiction(see CPL 470.15 [6] [a]; Peoplev Durrin, 32 AD3d 665, 666 [2006]), since the evidence of guilt was strong and theharm, if any, was so minor that it would have had little causal effect on the jury's verdict.
Next reviewing the sufficiency of the evidence by reviewing it in a light most favorable tothe prosecution to determine whether " 'there is any valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury' " (People v Johnson, 38 AD3d 1012,1013 [2007], quoting People v Bleakley, 69 NY2d 490, 495 [1987]), we find ampletestimony establishing that defendant twice forcibly stole property, caused physical injury to anonparticipant in the course of committing the crime and was aided by another person actuallypresent and that the crime committed was a felony. Addressing the weight of the evidence anddeferring to the jury's credibility determinations, we conclude that it would not be reasonable toreach a finding different from the one made by this jury. The victim's uncontroverted testimonyestablished defendant's identity, the time line of the crimes and each of their necessary elements.
Nor was defendant denied meaningful representation by his counsel. With defense counselsuccessfully moving for a severance, actively participating in voir dire, making [*3]substantive opening and closing statements, adequatelycross-examining witnesses and making appropriate trial motions, we find counsel's performancecompetent. Notably, at the time of sentencing, counsel also raised the issue of youthful offendertreatment.
While the decision to adjudicate a defendant as a youthful offender lies within the sounddiscretion of the trial court (see People v Bonilla, 237 AD2d 672, 673 [1997]), suchdetermination must be made on the record (see People v Martinez, 301 AD2d 615, 616[2003], lv denied 99 NY2d 656 [2003]). Despite defendant's eligibility, which was notedboth in the presentence report and by defense counsel, County Court never determined hisyouthful offender status nor articulated its reasons for denial (see People v Rivera, 27 AD3d 491, 491 [2006], lv denied 6NY3d 897 [2006]; People v Martinez, 301 AD2d at 616; People v Miles, 244AD2d 433, 434 [1997]). For this reason, defendant's sentence must be vacated.
Cardona, P.J., Crew III, Spain and Carpinello, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofUlster County for resentencing; and, as so modified, affirmed.