| People v Kirkland |
| 2008 NY Slip Op 02344 [49 AD3d 1260] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GavinKirkland, Also Known as Dennis Gavin, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered March 9, 2004. The judgment convicted defendant, upon a jury verdict, of robbery inthe second degree (four counts) and attempted robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by directing that the sentences imposed on each count ofrobbery in the second degree shall run concurrently with respect to each other and as modifiedthe judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, offour counts of robbery in the second degree (Penal Law § 160.10 [2] [b]) and one count ofattempted robbery in the second degree (§§ 110.00, 160.10 [2] [b]). We reject thecontention of defendant that the police lacked reasonable suspicion to stop him. A police officertestified at the suppression hearing that, within 30 minutes of the robbery, she observed anindividual who matched the description of the perpetrator near a vehicle that also matched thedescription of the perpetrator's vehicle. We thus conclude that the police had reasonablesuspicion to stop defendant based on the totality of the circumstances (see People v Evans, 34 AD3d1301, 1302 [2006], lv denied 8 NY3d 845 [2007]; People v Casillas, 289AD2d 1063, 1064 [2001], lv denied 97 NY2d 752 [2002]).
Contrary to defendant's further contention, Supreme Court properly refused to suppressthe showup identifications of defendant by two of the robbery victims. It is well settled that"[s]howup identifications 'are strongly disfavored but are permissible if exigent circumstancesrequire immediate identification . . . or if the suspects are captured at or near thecrime scene and can be viewed by the witness immediately' " (People v Johnson, 81NY2d 828, 831 [1993]; see People v Duuvon, 77 NY2d 541, 544 [1991]). Here, the twoshowup identifications were conducted approximately one mile from the crime scenes and onehour after the commission of the last robbery, and we conclude that none of the showupidentifications was unduly suggestive (see People v Boyd, 272 AD2d 898, 899 [2000],lv denied 95 NY2d 850 [2000]; cf. Johnson, 81 NY2d at 831). Also contrary todefendant's contention, the two photo array identifications of defendant by the two other robberyvictims were not unduly suggestive. The individuals depicted in the two photo [*2]arrays have similar physical characteristics, and "the viewer'sattention is not drawn to defendant's photo in such a way as to indicate that the police wereurging a particular selection" (People v Rogers, 245 AD2d 1041, 1041 [1997]).Defendant's contention that the evidence is legally insufficient to support the convictionunder count one of the indictment, arising out of the robbery of a convenience store, is notpreserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). We rejectdefendant's further contention that the verdict with respect to that count is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendantwas not denied effective assistance of counsel inasmuch as none of the errors allegedlycommitted by defense counsel was so prejudicial as to deprive defendant of a fair trial (seegenerally People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Baldi, 54NY2d 137, 147 [1981]).
We reject the further contention of defendant that the court erred in denying hisBatson challenge. Defendant failed to establish "[t]he more difficult aspect of the primafacie case delineated in Batson[, i.e.,] the second element—a showing of 'facts andother relevant circumstances' that would support an inference of impermissible discrimination"(People v Childress, 81 NY2d 263, 266 [1993]; see People v Jones, 284 AD2d46, 50 [2001], affd 99 NY2d 264 [2002]). Defendant failed to preserve for our review hiscontention that the verdict sheet improperly contained the name of the victim and the date andlocation of each robbery (see People v Dalcin, 300 AD2d 1129 [2002], lv denied99 NY2d 627 [2003]). He also failed to preserve for our review his contention that he wasimproperly sentenced as a second felony offender (see People v Anderson, 35 AD3d 1209 [2006], lv denied 8NY3d 919 [2007]). We decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We reject defendant'scontention that the court erred in imposing consecutive sentences on counts three and four of theindictment (see People v Brathwaite, 63 NY2d 839, 843 [1984]), as well as defendant'scontention with respect to the imposition of a five-year period of postrelease supervision oncount four (see Penal Law § 70.45[former (2)]). We agree with defendant,however, that the sentence is unduly harsh and severe, and we therefore modify the judgment as amatter of discretion in the interest of justice by directing that the sentences imposed on eachcount of robbery in the second degree shall run concurrently with respect to each other(see CPL 470.15 [6] [b]; Peoplev Foss, 48 AD3d 1219 [2008]). Present—Martoche, J.P., Lunn, Fahey, Peradottoand Pine, JJ.