| People v Webb |
| 2009 NY Slip Op 02021 [60 AD3d 1291] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Leon Webb,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Paul E. Bonanno of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedAugust 8, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree (two counts), robbery in the second degree, attempted robbery in the first degree,attempted robbery in the second degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of robbery in the first degree (Penal Law § 160.15 [4]) and one countof assault in the second degree (§ 120.05 [7]), arising from three separate incidents. Asdefendant correctly concedes, he failed to preserve for our review his contention that theconviction is not supported by legally sufficient evidence inasmuch as he failed to move for atrial order of dismissal on the ground raised on appeal (see People v Gray, 86 NY2d 10,19 [1995]). In any event, that contention is without merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). We therefore reject the further contention of defendantthat he was denied effective assistance of counsel based on defense counsel's failure to make amotion on that ground. "There can be no denial of effective assistance of . . .counsel arising from [defense] counsel's failure to 'make a motion . . . that has littleor no chance of success' " (People vCaban, 5 NY3d 143, 152 [2005]; see People v Odom, 53 AD3d 1084, 1087 [2008], lvdenied 11 NY3d 792 [2008]; People v Phelps, 4 AD3d 863 [2004], lv denied 2 NY3d804 [2004]). Furthermore, "the evidence, the law, and the circumstances of [this] case, viewed intotality and as of the time of the representation, reveal that [defense counsel] providedmeaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
Contrary to the contention of defendant, the letters that he wrote to his fiancee in which headmitted that he committed the assault and implied that he committed several of the other crimeswere properly admitted in evidence under the party admissions exception to the hearsay rule(see People v Swart, 273 AD2d 503, 505 [2000], lv denied 95 NY2d 908 [2000];see generally People v Humphrey,15 AD3d 683, 685 [2005], lv denied 5 NY3d 763 [2005]). Defendant furthercontends that County [*2]Court abused its discretion in admittingcertain photographs in evidence. We reject that contention. With respect to the photograph of anindividual holding a shotgun, a witness testified that the shotgun was the same as that used in therobberies charged in the indictment and that defendant was the person holding it. Inasmuch asdefendant's possession of the shotgun was at issue, evidence that defendant possessed thatweapon at an earlier time was relevant, and the probative value of the photograph outweighed itsprejudicial effect (cf. People v Brown, 216 AD2d 737, 737-738 [1995]; see generallyPeople v Marrero, 191 AD2d 289 [1993], lv denied 81 NY2d 973 [1993]). Contraryto the further contention of defendant, the People were permitted to introduce the photograph tostrengthen their case although they had already established a prima facie case with respect todefendant's possession of a weapon (see generally People v Alvino, 71 NY2d 233, 245[1987]; People v Marrin, 205 NY 275, 280 [1912]; People v Radoncic, 259AD2d 428 [1999], lv denied 93 NY2d 1005 [1999]). With respect to the remainingphotographs, we conclude that they were properly admitted in evidence because they were alsorelevant to material issues in the case, and "[p]hotographic evidence should be excluded only ifits sole purpose is to arouse the emotions of the jury and to prejudice the defendant" (Peoplev Pobliner, 32 NY2d 356, 370 [1973], rearg denied 33 NY2d 657 [1973], certdenied 416 US 905 [1974]; seePeople v Giles, 20 AD3d 863, 864 [2005], lv denied 5 NY3d 806 [2005]),which was not the case here.
Contrary to defendant's contention, the showup identification procedure used in connectionwith two of the victims was not unduly suggestive inasmuch as "the showup was 'conducted inclose geographic and temporal proximity to the crime' " (People v Lewis, 306 AD2d 931,932 [2003], lv denied 100 NY2d 596 [2003], quoting People v Brisco, 99 NY2d596, 597 [2003]). With respect to the photo array viewed by a third victim, we conclude that "thePeople met their initial burden of establishing the reasonableness of the police conduct. . . , and defendant failed to meet his ultimate burden of proving that the photoarray was unduly suggestive" (People vBell, 19 AD3d 1074, 1075 [2005], lv denied 5 NY3d 803, 850 [2005]; seePeople v Levy, 281 AD2d 984 [2001], lv denied 96 NY2d 831 [2001]).
Even assuming, arguendo, that defendant preserved for our review his contention that thecourt erred in denying his motion to sever certain counts of the indictment, we conclude that"[t]he counts were properly joined under CPL 200.20 (2) (b), and the court had no discretion tosever them" (People v Van Duser [appeal No. 2], 277 AD2d 1034, 1035 [2000], lvdenied 96 NY2d 739 [2001]; see People v Bongarzone, 69 NY2d 892, 895 [1987];see generally People v Lane, 56 NY2d 1, 7 [1982]). The sentence is not unduly harsh orsevere. We have considered defendant's remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Centra, Peradotto and Gorski, JJ.