| People v Harris |
| 2008 NY Slip Op 10302 [57 AD3d 1427] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Travis J. Harris,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Jessica B. Housel of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered October 30, 2002. The judgment convicted defendant, upon a jury verdict, of burglary in thefirst degree, attempted assault in the first degree, criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia,burglary in the first degree (Penal Law § 140.30 [4]) and attempted assault in the first degree(§§ 110.00, 120.10 [1]). As we previously determined on the appeal of the codefendant,Supreme Court did not err in charging the jury with respect to attempted assault in the first degree (People v McDaniels, 19 AD3d 1071[2005], lv denied 5 NY3d 830 [2005]). Defendant's further contention that the evidence islegally insufficient to support the conviction of attempted assault is not preserved for our reviewbecause defendant failed to renew his motion for a trial order of dismissal on that ground afterpresenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]; McDaniels, 19 AD3d 1071 [2005]). We also reject defendant'scontention that the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Contrary to the further contention of defendant, we conclude that the police had reasonablesuspicion to stop defendant based on the totality of the circumstances (see People v Kirkland, 49 AD3d 1260[2008], lv denied 10 NY3d 961 [2008]; see generally People v Martinez, 80 NY2d444, 447 [1992]). Here, the record of the suppression hearing establishes that the police encountereddefendant in proximity to the street where the police had observed that the suspects had abandonedtheir car and had fled on foot, there were no other pedestrians in the area, there was minimal vehiculartraffic, and defendant was dressed inappropriately for the extremely cold weather. We further concludethat, although defendant appeared in handcuffs and was escorted by police officers, the showupidentification procedure was not unduly suggestive (see People v Jackson, 281 AD2d 906,907-908 [2001], lv denied 96 NY2d 920 [2001]). The record of the suppression hearingestablishes that the showup was conducted approximately one hour after the crimes were committedand within three miles of the [*2]location where defendant was stoppedby the police (see People v Rodgers, 6AD3d 464, 465 [2004], lv denied 2 NY3d 805 [2004]; People v Bonilla, 299AD2d 934, 935 [2002], lv denied 99 NY2d 580 [2003]; People v Hunt, 277 AD2d911, 911-912 [2000]). Finally, the sentence is not unduly harsh or severe. Present—Scudder,P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.