| People v Smith |
| 2008 NY Slip Op 09914 [57 AD3d 356] |
| December 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Champagne Smith, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (John A.K. Bradley, J., at hearings; RuthPickholz, J., at jury trial and sentence), rendered March 15, 2006, convicting defendant of murderin the second degree and criminal possession of a weapon in the second and third degrees, andsentencing him to an aggregate term of 25 years to life, affirmed.
Since there was sufficient corroboration of defendant's guilt, including consciousness-of-guiltevidence and partially incriminating statements to the police, the exclusion of expert testimonyon the reliability of eyewitness identification does not require reversal. Furthermore, there werehighly reliable multiple eyewitness identifications. In People v Abney (57 AD3d 35[2008]), this Court determined that an eyewitness identification was reliable where the witnesssaw the perpetrator face to face in a well-lit stairwell and identified him in an array of photos anhour after the incident, and again three weeks later in a lineup. Here, the reliability of theeyewitnesses is even greater; not only were there multiple eyewitnesses, but each witnessobserved the perpetrator at close range on a well-lit street. Moreover, one of the eyewitnessesrecognized defendant from the neighborhood, and shortly after the shooting, all threeeyewitnesses identified the perpetrator in a lineup. We note that defendant's reliance on People v LeGrand (8 NY3d 449[2007]) is misplaced because unlike the instant case, the eyewitness identifications inLeGrand were made some seven years after the incident and only after one of themultiple eyewitnesses was able to identify the defendant in a lineup and photo array.
At trial, defendant attacked the credibility of two of the prosecution witnesses by asking thejury to draw an inference that they had received lenient treatment on unrelated cases in return fortheir testimony. The witnesses themselves, and prosecutors assigned to their cases, testified thatthere were no cooperation agreements and that the dispositions of the witness's cases had nothingto do with their status as witnesses. During deliberations, the jury asked for an explanation of"cooperation agreements." The court responded with an instruction stating, among other things,that "there was no evidence that any witness in this case testified under a formal cooperationagreement." As requested by the jury, the court also directed a readback of all the testimonyrelevant to this issue. To the extent that defendant presently argues that the [*2]court should have told the jury it could infer that a cooperationagreement existed based on the evidence, that argument is unpreserved because he neverrequested such an instruction, and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits. In addition, we reject defendant's argumentthat the court's instruction, as given, warrants reversal. The instruction that there was no "formal"agreement was literally true but misleading, because it failed to address the possible inferencethat there was an implied or informal agreement, notwithstanding the witnesses' and theprosecutors' disclaimers. However, there was no prejudice to defendant, because the instructiondid not eliminate from the jury's consideration the existence of an informal or implied agreement(see e.g. People v Lilly, 264 AD2d 684 [1999], lv denied 94 NY2d 825 [1999]),especially since the instruction was accompanied by readbacks of testimony on this very issue. Inany event, any error in the instruction was harmless, because there was overwhelming evidenceof defendant's guilt, and the testimony of the two witnesses at issue was only a portion of theextensive proof.
The trial court properly permitted a witness to testify while wearing a disguise consisting of awig and false facial hair. Initially, we conclude that there is no evidence that the disguiseimpaired the jury's ability to assess the witnesses' demeanor, and we accordingly rejectdefendant's Confrontation Clause argument. The People made a sufficient showing that thedisguise was justified by the necessities of the case (see People v Morales, 246 AD2d 302[1998], lv denied 91 NY2d 975 [1998]). There was a heightened need to protect thesecurity of this witness; we note that on appeal defendant does not challenge the court's rulingpermitting the witness to testify under a pseudonym, and in a closed courtroom. While defendantclaims that the witness's disguise suggested to the jury that defendant was dangerous, he did notavail himself of the court's offer to deliver a curative instruction. While a jury's note indicatedthat it was aware the witness wore a disguise, any prejudice was alleviated by the court'ssupplemental instruction. In any event, any error was harmless in view of the overwhelmingevidence of defendant's guilt.
The hearing court properly denied defendant's motion to suppress the lineup identificationmade by one of the witnesses, or to reopen the Wade hearing, based on a belateddisclosure that the witness recognized two of the five fillers. This circumstance did not render thelineup unduly suggestive (see People v Floyd, 173 AD2d 211 [1991], lv denied78 NY2d 966 [1991]; People v Norris, 122 AD2d 82, 84 [1986], lv denied 68NY2d 916 [1986]). A review of the lineup photograph indicates that all participants weresufficiently similar in appearance, and any differences in height were minimized by the fact thatthe participants were seated.
The prosecutor's summation comments that defendant now challenges as shifting the burdenof proof were made in fair response to defense counsel's summation, and they did not violate anyconstitutional right of defendant. Furthermore, the court's curative instructions were sufficient toprevent any prejudice. Defendant's remaining challenges to the prosecutor's opening statementand summation are unpreserved, and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits.
The trial court's denial (11 Misc 3d 1087[A], 2006 NY Slip Op 50758[U] [2006], *9-11) ofdefendant's CPL 330.30 (2) motion to set aside the verdict on the ground of juror misconduct wasproper. Concur—Tom, J.P., Saxe, Williams and Catterson, JJ.[*3]
Moskowitz, J., concurs in a separate memorandum asfollows: I concur with the result because there were multiple eyewitness identifications and othercorroborating evidence in this case. However, I write separately because I disagree with themajority's legal analysis. As the majority readily recognizes, this case involved "highly reliablemultiple eyewitness identifications" and additional evidence such as "partially incriminatingstatements to the police." Accordingly, the majority affirmed the conviction. However, in supportof upholding the conviction, the majority cited to this Court's recent decision in People vAbney (57 AD3d 35 [2008]), a case where I dissented, and which is not applicable to thiscase. Abney involved a single eyewitness who was the victim of a violent robbery in thesubway. The victim, who was only 13, picked her assailant out of a lineup a full three weeks afterthe crime. When the trial court rejected expert testimony on eyewitness identification, there wasno corroborating evidence before it. Here, by contrast, there was extensive corroboratingevidence. Therefore, the issue in Abney—namely, whether to allow experttestimony concerning the accuracy of eyewitness identification in a single-eyewitness case (andin my view with no other corroborating evidence)—is simply not an issue in this case.
The Court of Appeals has held that a court should consider whether to allow experttestimony about eyewitness reliability "where the case turns on the accuracy of eyewitnessidentifications and there is little or no corroborating evidence connecting the defendant to thecrime" (People v LeGrand, 8 NY3d449, 452 [2007]). This case is more like People v Tocci (52 AD3d 541 [2008]), in which the court deniedthe defendant's request for an expert witness where there were 11 eyewitnesses and othercorroborating evidence (see also Peoplev Miller, 8 AD3d 176 [2004], mod on other grounds 6 NY3d 295 [2006], whereone of two identifying witnesses had known the defendant for many years and People v Austin, 38 AD3d 1246[2007], lv denied 8 NY3d 981 [2007], where there were four identifying witnesses).Indeed, as the Tocci court's "cf." cite to LeGrand demonstrates (52 AD3dat 542), that court did not consider the necessity of expert testimony to be an issue. Nor is it here.However, it was in Abney. Therefore, I concur, but disagree with the majority's relianceon Abney, because the situation in that case, with its analysis of LeGrand, issimply not the same as in this one.