| People v Ball |
| 2008 NY Slip Op 10327 [57 AD3d 1444] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CliffordBall, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Loretta S. Courtney of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered January10, 2003. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree,kidnapping in the second degree, criminal possession of a weapon in the second degree and robbery inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byreversing that part convicting defendant of criminal possession of a weapon in the second degree anddismissing count three of the indictment and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia,robbery in the first degree (Penal Law § 160.15 [4]) and criminal possession of a weapon in thesecond degree (§ 265.03 [former (2)]), defendant contends that County Court erred in refusingto suppress identification testimony. We reject that contention. As we concluded in our decision on theprior appeal of a codefendant, " 'the showup was reasonable under the circumstances—that is,. . . conducted in close geographic and temporal proximity to the crime—and theprocedure used was not unduly suggestive' " (People v Newton, 24 AD3d 1287, 1288 [2005], lv denied 6NY3d 836 [2006], quoting People v Brisco, 99 NY2d 596, 597 [2003]). Contrary todefendant's contention, the sequence in which the suspects were shown separately to the victim did notrender the showup identification procedure unduly suggestive (see People v Evans, 291 AD2d868, 869 [2002]). We also reject defendant's further contention that the People were required toestablish the existence of exigent circumstances in order to justify their use of the showup identificationprocedure. "Exigent circumstances for a civilian showup are required only when it is conducted at apolice station or when it is not held in geographic and temporal proximity to the crime" (People v Ponder, 42 AD3d 880, 881[2007], lv denied 9 NY3d 925 [2007]; see People v Eaves, 15 AD3d 891, 892 [2005], lv denied 4NY3d 853 [2005]) and, as we previously held, the showup identification procedure was conducted ingeographic and temporal proximity to the crime (see Newton, 24 AD3d at 1288).
Contrary to the further contention of defendant, the court's interested witness instruction was fairand balanced. "It has been repeatedly held that the standard interested witness instruction that wasgiven here, which instructs that the defendant is an interested witness as a matter of law and that the jury[*2]is free to find, as a matter of fact, that any of the prosecution'switnesses are also interested witnesses, is properly balanced" (People v Bowden, 198 AD2d39, 40 [1993]; see People v Agosto, 73 NY2d 963, 967 [1989]).
As the People correctly concede, pursuant to our decision in the appeal of a second codefendant,who was tried jointly with defendant (Peoplev Clark, 6 AD3d 1066, 1068 [2004], lv denied 3 NY3d 638 [2004]), that part ofthe judgment convicting defendant of criminal possession of a weapon in the second degree must bereversed and that count of the indictment dismissed. We therefore modify the judgment accordingly. Aswe wrote in that decision, "[t]he People presented proof that defendant, as either a principal or anaccomplice, possessed two different firearms, but defendant was indicted for possession of only one.Nothing in the bill of particulars or instructions given by County Court specified which firearm defendantwas alleged to have possessed and thus it is possible that defendant was convicted of an unindictedcrime" (id.). The same reasoning applies equally here. Finally, the sentence is not unduly harshor severe. Present—Martoche, J.P., Smith, Fahey and Pine, JJ.