| People v Mathis |
| 2009 NY Slip Op 01729 [60 AD3d 1144] |
| March 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DaniereMathis, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the Supreme Court (Czajka, J.), rendered September8, 2006 in Albany County, upon a verdict convicting defendant of the crime of robbery in thesecond degree.
In July 2006, defendant was charged in an indictment with one count of robbery in thesecond degree arising out of an incident that occurred in the City of Albany. According to thevictim, he had met defendant's girlfriend, Janette Jiminez, when she stayed at a hotel that thevictim managed. Jiminez gave the victim her telephone number and told him she wanted to seehim again some time. A day later, Jiminez and the victim made arrangements for him to meet herin the City of Troy, Rensselaer County, and drive back to Albany. When the victim arrived inTroy, he found defendant with Jiminez and, at her request, the victim agreed to give defendant aride to a location in Albany. Defendant, who was sitting in the back seat, directed the victim tostop in a residential area and then grabbed the victim by the neck, placed what appeared to be agun at the victim's head and demanded the victim's money.
After defendant threatened to shoot the victim because he had only $20, the victim drove toan automated teller machine at a convenience store to obtain additional funds. Defendant orderedthe victim to give his card and personal identification number to Jiminez, who went into the storeto withdraw money while defendant continued to hold the gun against the [*2]victim's ribs. Upon Jiminez's return, she handed $300 in cash todefendant, who became distracted while counting the money. Seizing the opportunity, the victimthen ran into the store, shouting, "Call 9-1-1, I'm getting robbed." Defendant followed the victiminto the store and told the clerk that the victim had kidnaped defendant's girlfriend. After thevictim responded that they should let the police come and decide what happened, defendant firststared at the victim for a few seconds and then fled. When the police arrived at the store, thevictim provided a description of defendant and Jiminez, and the two were taken into custodyshortly thereafter as they attempted to leave a nearby college campus in a taxi. Police alsorecovered a fake gun at the store.
Subsequently, Jiminez pleaded guilty to the crime of attempted robbery in the second degree,with a maximum sentence of two years in prison in exchange for testifying against defendant.Following the denial by County Court (Breslin, J.) of defendant's motion to suppressidentification evidence, the matter proceeded to a jury trial, at which defendant appeared pro se.The jury ultimately found defendant guilty as charged and Supreme Court sentenced him, as asecond felony offender, to 15 years in prison, to be followed by five years of postreleasesupervision. Defendant appeals, and we now affirm.
Initially, we reject defendant's argument that County Court erred in denying his motion tosuppress the victim's showup identification. Showup identifications are permissible even "in theabsence of exigent circumstances, where the showup [is] reasonable under thecircumstances—that is, when conducted in close geographic and temporal proximity to thecrime—and the procedure used [is] not unduly suggestive" (People v Brisco, 99NY2d 596, 597 [2003]; see People v Ortiz, 90 NY2d 533, 537 [1997]). The procedurewill be deemed unduly suggestive only if it takes place "under circumstances which [are]'. . . so unnecessarily suggestive as to create a substantial likelihood ofmisidentification' " (People v Hughes, 287 AD2d 872, 875 [2001], lv denied 97NY2d 656 [2001] [citation omitted]; accord People v Armstrong, 11 AD3d 721, 722 [2004], lvdenied 4 NY3d 760 [2005]). Here, the showup was conducted approximately one-half milefrom the convenience store, 40 minutes after the police were contacted. Under thesecircumstances, we cannot say that the showup was unreasonable (see People v Tillman, 57 AD3d1021, 1023 [2008]; People vMartinez, 9 AD3d 679, 681 [2004], lv denied 3 NY3d 709 [2004]; People v Jackson, 2 AD3d 893,895 [2003], lv denied 1 NY3d 629 [2004]). Moreover, the fact that defendant was inhandcuffs, standing in close proximity to Jiminez and guarded by police did not, as defendantasserts, render the showup impermissibly suggestive (see People v Brown, 46 AD3d 1128, 1129-1130 [2007]; People v Gatling, 38 AD3d 239,240 [2007], lv denied 9 NY3d 865 [2007]; People v August, 33 AD3d 1046, 1049 [2006], lv denied 8NY3d 878 [2007]). Finally, an officer's statement to the victim—who immediatelyidentified defendant and Jiminez upon seeing them—that the police had stopped suspectsfitting the victim's description " 'merely conveyed what a witness of ordinary intelligence wouldhave expected under the circumstances' " (People v Gatling, 38 AD3d at 240 [citationomitted]; accord People v August, 33 AD3d at 1049).
We further conclude that there is no merit to defendant's argument that the verdict wasagainst the weight of the evidence. Inasmuch as a different finding would not have beenunreasonable, we "must, like the trier of fact below, 'weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony,' " considering whether the elements of the crime were proved beyond a reasonabledoubt (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Danielson, 9 NY3d342, 348-349 [2007]; People vRomero, 7 NY3d 633, 643-644 [2006]). Viewing the [*3]evidence in a neutral light and according deference to the jury'ssuperior opportunity to assess the credibility of the People's witnesses, we conclude that theverdict was not against the weight of the evidence. Contrary to defendant's argument, theinconsistencies between the testimony of Jiminez and the victim and their prior statements, aswell as Jiminez's motives for testifying against defendant, do not render the testimony incredibleas a matter of law, particularly given that these matters were highlighted for the jury (see People v Scanlon, 52 AD3d1035, 1039 [2008], lv denied 11 NY3d 741 [2008]; People v Brown, 46 AD3d 949,951 [2007], lv denied 10 NY3d 808 [2008]; People v Gilliam, 36 AD3d 1151, 1152-1153 [2007], lvdenied 8 NY3d 946 [2007]; Peoplev Moore, 17 AD3d 786, 789 [2005], lv denied 5 NY3d 792 [2005]).
Defendant's remaining argument has been considered and found to be lacking in merit.
Cardona, P.J., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.