| People v Fleming |
| 2009 NY Slip Op 06345 [65 AD3d 702] |
| August 25, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Fleming, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, Westchester County(Loehr, J.), rendered March 5, 2007, convicting him of robbery in the third degree, grand larcenyin the fourth degree, and menacing in the second degree, under indictment No. 06-00621, uponhis plea of guilty, and (2) a judgment of the same court, also rendered March 5, 2007, convictinghim of robbery in the second degree, under indictment No. 06-00622, upon a jury verdict, andimposing sentences. The appeals bring up for review the denial, after a hearing, of thosebranches of the defendant's omnibus motion which were to suppress physical evidence,identification testimony, and his statements to law enforcement officials.
Ordered that the judgments are affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewingthe record here, we are satisfied that the verdict of guilt under indictment No. 06-00622 was notagainst the weight of the evidence (seePeople v Johnson, 10 NY3d 875, 878 [2008]; People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the hearing court properly declined to suppress lineupidentification evidence. "While lineup participants should share the same general physicalcharacteristics, there is no requirement that a defendant in a lineup be surrounded by personswho are nearly identical in appearance" (People v Marshall, 51 AD3d 821, 821 [2008]). Here, the lineupwas not unduly suggestive, as any height differences were minimized by the fact that theparticipants were seated, and the photographs taken at the lineup demonstrate that the fillerssufficiently resembled the defendant (id.; see People v Solis, 43 AD3d 1190 [2007]; People v Villacreses, 12 AD3d624 [2004]).
Additionally, the hearing court properly determined that there was reasonable suspicion tostop a vehicle shortly after a robbery at a nearby location since the vehicle had the license platenumber provided by a witness who saw the vehicle drive away at a high rate of speedimmediately after the robbery (see People v Eades, 269 AD2d 857 [2000]; People vMitchell, 143 AD2d 947 [1988]; People v Finlayson, 76 AD2d 670 [1980]). Thedefendant's reliance on trial testimony to challenge the hearing court's determination is improper,since he failed to move to reopen the suppression hearing (see People v Rice, 39 AD3d 567 [2007]; People v Boynton, 35 AD3d 875[2006]). Moreover, the propriety of the denial of the defendant's suppression motion must bedetermined based upon the evidence before the suppression court (see People vGonzalez, 55 NY2d 720, 722 [1981]; People v Sumpter, 192 AD2d 628 [1993]). Thehearing court properly determined that the police had probable cause to arrest the defendant oncethe police observed a gun in plain view in the back seat of the vehicle (see People v Haynes, 16 AD3d434 [2005]; People v Byrd, 156 AD2d 374 [1989]). Accordingly, the Supreme Courtproperly denied those branches of the defendant's omnibus motion which were to suppressphysical evidence and his statements to law enforcement officials.
Portions of the defendant's claim of ineffective assistance of counsel are based on matterdehors the record, which cannot be reviewed on direct appeal (see People v Haynes, 39 AD3d562, 564 [2007]). To the extent that this claim is reviewable on these appeals, the defendantreceived meaningful representation (seePeople v Ramchair, 8 NY3d 313, 316 [2007]; People v Benevento, 91 NY2d708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Rivera, J.P., Skelos, Balkinand Leventhal, JJ., concur.