| People v John |
| 2008 NY Slip Op 04543 [51 AD3d 819] |
| May 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DionJohn, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Edward D. Saslawof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered March 30, 2005, convicting him of attempted robbery in the first degree andattempted robbery in the second degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of those branches of the defendant's omnibusmotion which were to suppress physical evidence and identification testimony. By decision andorder dated March 6, 2007, this Court remitted the matter to the Supreme Court, Queens County,for a de novo suppression hearing and a report thereafter on those branches of the defendant'somnibus motion which were to suppress physical evidence and identification testimony, and heldthe appeal in abeyance in the interim (see People v John, 38 AD3d 568 [2007]). The Supreme Court hasnow filed its report.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court correctly denied suppression of ashowup identification made by the victim. The showup was conducted in close temporal andspatial proximity to the time and place of the crime, and police conduct did not render theprocedure unduly suggestive (see People v Duuvon, 77 NY2d 541, 544 [1991]; People v Charles, 31 AD3d 657,658 [2006]; People v Simmons, 297 AD2d 759, 760 [2002]). Furthermore, as a policeofficer is authorized to search a defendant incident to a lawful arrest (see Chimel v California,395 US 752, 762 [1969]; People v Cooper, 38 AD3d [*2]678, 680 [2007]; People v Davis, 32 AD3d 445 [2006]), the court properly deniedsuppression of the mask and hat found in the defendant's possession.
The defendant's contention that the evidence was legally insufficient to prove his identity asthe perpetrator of the crime is unpreserved for appellate review (see CPL 470.05 [2]; People v Drayton, 24 AD3d 686[2005]; People v Gomez, 308 AD2d 460 [2003]). In any event, viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we found that it was legally sufficient to establish the defendant's identity beyond a reasonabledoubt. An identification may be based upon height, weight, clothing, walk, or voice, and is notprecluded merely because the witness did not see the defendant's face (see People v Lyons,197 AD2d 708 [1993]). Moreover, resolution of issues of credibility is primarily a matter tobe determined by the jury, which saw and heard the witnesses, and its determination should beaccorded great deference on appeal (seePeople v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict was not against the weightof the evidence (see People v Romero,7 NY3d 633 [2006]).
The defendant was not deprived of a fair trial when the trial court administered a thirdAllen charge (see Allen v United States, 164 US 492 [1896]). Contrary to thedefendant's contention, the fact that three Allen charges were given was not, in and ofitself, coercive (see People v Manino,20 AD3d 492 [2005]; People v Cortez, 242 AD2d 338 [1997]; People vSims, 226 AD2d 564, 565 [1996]).
The defendant's contention that the testimony of a police officer constituted improperbolstering in violation of People v Trowbridge (305 NY 471 [1953]) is unpreserved forappellate review because defense counsel made no objection to this testimony at trial (seeCPL 470.05 [2]; People v Norris,5 AD3d 796, 797 [2004]; People v Anderson, 260 AD2d 387, 388 [1999]). Inany event, the officer's testimony did not, either directly or inferentially, bolster the identificationtestimony of the complaining witness (see People v Smalls, 293 AD2d 500, 501 [2002];People v Higgins, 216 AD2d 487, 488 [1995]; People v Gray, 203 AD2d 587[1994]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Skelos, Covello and Balkin, JJ., concur.