| People v Thomas |
| 2009 NY Slip Op 06582 [65 AD3d 1170] |
| September 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sheldon Thomas, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered January 30, 2007, convicting him of murder in the second degree,attempted murder in the second degree (five counts), attempted assault in the first degree (fivecounts), assault in the second degree, and criminal possession of a weapon in the second degree(two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
The defendant alleges that there was no probable cause to arrest him, and that the resultantlineup identification evidence should have been suppressed. There was probable cause to arrestthe defendant (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas,378 US 108 [1964]). Contrary to the defendant's contention, the People adequatelydemonstrated that the citizen informant was reliable and had some basis of knowledge for theinformation given to the police (see People v Parris, 83 NY2d 342, 350 [1994];People v Robbins, 198 AD2d 451, 451 [1993]). The citizen informant came forward as aperson who allegedly witnessed the shooting that formed the basis for the prosecution of thedefendant (id.). Although the citizen informant identified another individual in a photoarray as one of the perpetrators involved in the shooting, the person so identified had the samename as the defendant, looked like the defendant, and lived in the same general area as thedefendant. The " 'arrest of a person who is mistakenly thought to be someone else is valid if thearresting officer (a) has probable cause to arrest the person sought, and (b) reasonably believedthe person arrested was the person sought' " (People v Tejada, 270 AD2d 655, 657[2000], quoting United States v Glover, 725 F2d 120, 122 [1984], cert denied466 US 905 [1984]; see Hill v California, 401 US 797, 802 [1971]; Berson vCity of New York, 122 AD2d 7, 8-9 [1986]; Toenis v Hommel, 59 AD2d 1000[1977]). Accordingly, the Supreme Court properly denied that branch of the defendant's motionwhich was to suppress the lineup identification evidence.
However, the trial court improvidently exercised its discretion in admitting into evidence thedefendant's Rikers Island visitors' log, which served to inform the jurors of the defendant'sincarceration prior to and during the trial (see People v Randolph, 18 AD3d 1013, 1015 [2005]; People vMachicote, 251 AD2d 684 [1998]; People v Pelt, 161 AD2d 284 [1990]; Peoplev Connor, 137 AD2d 546, 550 [1988]). To the extent that the visitors' log was relevant to amaterial fact in this case, [*2]whatever probative value itconferred was substantially outweighed by the danger that it would unfairly prejudice thedefendant or mislead the jury (cf. People v Jenkins, 88 NY2d 948, 951 [1996];People v Vasquez, 88 NY2d 561, 577-578 [1996]; People v Melendez, 50 AD3d 485, 485 [2008]; People vJackson, 239 AD2d 433 [1997]).
Nevertheless, the evidence of the defendant's guilt, including the "identification of thedefendant by [ ] eyewitness[es other than the citizen informant] who had seen the defendant inthe neighborhood . . . on various occasions prior to the incident" (People vBradford, 163 AD2d 401, 401 [1990]) was overwhelming, and there is no significantprobability that the error contributed to his conviction in light of, among other things, the court'scurative instructions (see People v Brehon, 267 AD2d 318 [1999]). Accordingly, theerror was harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Moreover, to the extent that the defendant raises a constitutional claim with respect to theadmission of the visitors' log into evidence, that claim is unpreserved for appellate review (see People v Grant, 7 NY3d 421,424 [2006]; People v Kello, 96 NY2d 740, 743-744 [2001]; People v Diaz, 50 AD3d 919[2008]). Skelos, J.P., Santucci, Balkin and Leventhal, JJ., concur.