| People v Jackson |
| 2009 NY Slip Op 01235 [59 AD3d 637] |
| February 17, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carlos Jackson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and Terry-Ann Llewellyn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.),rendered July 18, 2006, convicting him of attempted robbery in the first degree, assault in thesecond degree, menacing in the second degree, and criminal possession of a weapon in the fourthdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress identification testimony resulting from two showups. The showups, which wereconducted in close geographic and temporal proximity to the crime, were reasonable under thecircumstances and were not unduly suggestive (see People v Duuvon, 77 NY2d 541[1991]; People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833[1990]; People v Cruz, 31 AD3d660, 661 [2006]; People vPierre, 2 AD3d 461, 462 [2003]; People v Tislon, 279 AD2d 488 [2001];People v Cartas, 238 AD2d 434, 435 [1997]; People v Rowlett, 193 AD2d 768[1993]; People v Carbonaro, 162 AD2d 459 [1990]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of attempted robbery in the first degree and assault in the second degree beyonda reasonable doubt (see People v Felix, 56 [*2]AD3d 796[2008]; People v Perez, 51 AD3d1042 [2008], lv denied 11 NY3d 792 [2008]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt ofattempted robbery in the first degree and assault in the second degree was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying his motion for a mistrial based upon one brief reference in the trialtestimony to a crime for which the defendant was charged but not indicted (see People vOrtiz, 54 NY2d 288, 292 [1981]; People v Brescia, 41 AD3d 613, 614 [2007]; People v Whitely, 41 AD3d 622,623 [2007]). The Supreme Court's prompt action in striking the testimony and issuing curativeinstructions to the jury alleviated any prejudice to the defendant that may have resulted fromsuch testimony (see People v Santiago, 52 NY2d 865, 866 [1981]; People vYoung, 48 NY2d 995, 996 [1980]; People v Brescia, 41 AD3d at 613-614).
Also contrary to the defendant's contention, the Supreme Court did not err in admitting acertain 911 recording into evidence (see People v Buie, 86 NY2d 501 [1995]; People v Marino, 21 AD3d 430[2005], cert denied 548 US 908 [2006]; People v Lewis, 222 AD2d 1058[1995]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Rivera, J.P., Florio, Angiolillo and Dickerson, JJ., concur.