| People v Chisolm |
| 2008 NY Slip Op 09456 [57 AD3d 223] |
| December 2, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Sammie Chisolm, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgments, Supreme Court, New York County (Maxwell Wiley, J., on consolidation andexpert witness motions; Ruth Pickholz, J., at jury trial and sentence), rendered November 20,2007, convicting defendant of grand larceny in the fourth degree and criminal possession ofstolen property in the fourth degree, and sentencing him, as a second felony offender, toconcurrent terms of 2 to 4 years, unanimously affirmed.
The court providently exercised its discretion in denying defendant's motion to present experttestimony on eyewitness identification. This case involves two closely related incidents; only theincident that led to the grand larceny conviction involved an identification issue. There wassignificant corroborating evidence (seee.g. People v Allen, 53 AD3d 582, 584 [2008]) of defendant's guilt of the larceny,namely, both a surveillance videotape and defendant's admission that placed him in very closespatial and temporal proximity to the crime, and the fact that defendant's clothing and physicalfeatures, as clearly shown on the videotape, closely matched the detailed description provided bythe larceny victim's husband shortly after the incident. We have considered and rejecteddefendant's arguments as to alleged discrepancies in the description. Furthermore, aside fromcorroborating evidence, the facts of this case are also distinguishable from those of People v LeGrand (8 NY3d 449[2007]) in terms of the circumstances of the eyewitness identification itself (see People v Austin, 46 AD3d195, 200 [2007]), because, unlike the identification in LeGrand, which occurredsome seven years after the crime, here the victim's husband saw the perpetrator in daylight withhis wife's wallet moments after it was taken, had an opportunity to observe his features during atwo-block chase, and gave a detailed description of him shortly after the incident. Further, withina few weeks of the crime, the victim's husband identified defendant from the videotape as well asin a lineup. Defendant failed to preserve his argument that the hearing court's ruling deprived himof his constitutional right to present a defense, and we decline to review it in the interest ofjustice (see People v Lane, 7 NY3d888, 889 [2006]). As an alternative holding, we also reject it on the merits (see Crane vKentucky, 476 US 683, 689-690 [1986]).
To the extent the claim of ineffective assistance of counsel can be resolved on the present[*2]record, defendant received effective assistance under the stateand federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; seealso Strickland v Washington, 466 US 668 [1984]). He was not prejudiced by defensecounsel's failure to move to preclude the videotape identification of defendant in the grandlarceny case on the ground of lack of CPL 710.30 (1) (b) notice, since the properly noticed lineupidentification, the in-court identification and the corroborating videotape itself would have beenadmissible in any event (see e.g. People v Alvarado, 235 AD2d 237 [1997], lvdenied 89 NY2d 1031 [1997]).
The court properly granted the People's motion to consolidate the indictments. The courtproperly granted consolidation pursuant to CPL 200.20 (2) (b), since evidence relating to thestolen property case, namely the surveillance video and defendant's admission, was admissible asmaterial evidence in the larceny case (see e.g. People v Johnson, 46 AD3d 415, 416 [2007]). The courtalso correctly determined that each crime constituted proof of the other because both involved thetaking of wallets under very similar, distinctive circumstances at about the same time and place(see People v Screahben, 35 AD3d246 [2006], lv denied 8 NY3d 884 [2007]). The indictments were also properlyconsolidated pursuant to CPL 200.20 (2) (c) as legally similar, and defendant failed to make asufficient showing to warrant a discretionary severance (see CPL 200.20 [3]; People vLane, 56 NY2d 1, 8 [1982]; People v Streitferdt, 169 AD2d 171, 176 [1991], lvdenied 78 NY2d 1015 [1991]). Concur—Tom, J.P., Nardelli, McGuire, Acosta andDeGrasse, JJ.