| People v Reyes |
| 2009 NY Slip Op 02004 [60 AD3d 873] |
| March 17, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Reyes, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B.Goodman of counsel), for respondents.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.),rendered August 17, 2006, convicting him of robbery in the first degree (two counts) androbbery in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification testimony.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's motion,pursuant to CPL 200.20 (3), for separate trials on the respective incidents charged in theindictment. The proof of each crime was separately presented, uncomplicated, and easilysegregable in the minds of the jurors, there was no substantial difference in the quantity of proofat trial for each of the crimes, and the court repeatedly instructed the jury to consider eachincident separately (see People v Vernon, 304 AD2d 679, 680 [2003]; People vBrewer, 269 AD2d 538 [2000]). The defendant's bald assertion that the Supreme Court'sdenial of the severance motion prevented him from testifying with respect to one or two of theincidents did not constitute a convincing showing that he had both important testimony to giveconcerning some counts and a genuine need to refrain from testifying on the others (seeCPL 200.20 [3] [b]; People v Vernon, 304 AD2d at 680; People v Nelson,133 AD2d 470, 471 [1987]).
The Supreme Court did not err in failing to suppress lineup identification testimony.Photographs [*2]of the lineup reveal that any differences in thefacial hair of the lineup participants were barely noticeable, and did not render the lineup undulysuggestive (see People v Stewart,51 AD3d 826, 827 [2008]; People v Santiago, 2 AD3d 263, 264 [2003]). While two of thelineup fillers had ponytails, they were positioned in a way that obscured their ponytails (seePeople v Mena, 287 AD2d 394 [2001]; People v Diaz, 138 AD2d 728 [1988]).Despite any discrepancies in their actual ages, all of the lineup participants appeared to beroughly the same age (see People v Jackson, 98 NY2d 555, 559 [2002]; People v Rodriguez, 52 AD3d 399[2008]; People v Brown, 47 AD3d826, 827 [2008]). Any differences in height and weight were obscured by the fact that theparticipants were seated, holding a card in front of their torsos (see People v Brown, 47AD3d at 827; People v Shaw, 251 AD2d 686 [1998]). The defendant's contention thattwo of the witnesses could have communicated with each other while in the waiting room priorto the lineup is purely speculative and unsupported by the hearing record (see People vCelestin, 231 AD2d 736 [1996]; People v Morales, 134 AD2d 292, 293 [1987]).
The defendant failed to establish that he was denied the right to counsel at the lineup (see generally People v Mitchell, 2NY3d 272, 274 [2004]). There was no testimony adduced at the suppression hearingindicating that the police were aware that the defendant was represented by counsel on a pendingunrelated charge or that the defendant requested the presence of his counsel at the lineup (see People v Brown, 26 AD3d392 [2006]; People v Brooks, 184 AD2d 518, 519 [1992]; People v Grant,118 AD2d 726, 727 [1986]).
The defendant's contention that the evidence was legally insufficient to establish his identityas the perpetrator of the crimes is unpreserved for appellate review (see CPL 470.05 [2];People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention, raised in his supplemental pro se brief, that the People violatedtheir disclosure obligations under Brady v Maryland (373 US 83 [1963]), relies onfactual assertions outside the record and thus is not reviewable on direct appeal (see People v Purdie, 50 AD3d1065 [2008]).
The defendant's claim of ineffective assistance of counsel, also raised in his supplementalpro se brief, is unreviewable on direct appeal to the extent that it is predicated on matter dehorsthe record (see People v Haynes, 39AD3d 562, 564 [2007]). To the extent that the claim can be reviewed, the defendantreceived meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Rivera, J.P., Ritter, Miller and Chambers, JJ., concur.