| People v Black |
| 2009 NY Slip Op 07340 [66 AD3d 512] |
| October 15, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LuisBlack, Also Known as Lewis Black, Appellant. The People of the State of New York,Respondent, v William Butts, Appellant. |
—[*1] Steven Banks, The Legal Aid Society, New York (Robert Budner of counsel), for WilliamButts, appellant. Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgments, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedFebruary 28, 2007, convicting defendant Luis Black, after a jury trial, of robbery in the first andsecond degrees, attempted robbery in the second degree and criminal possession of a weapon inthe second and third degrees, and sentencing him, as a second violent felony offender, to anaggregate term of 35 years, and convicting defendant William Butts, after a jury trial, of robberyin the first degree (two counts), robbery in the second degree (four counts), attempted robbery inthe second degree and criminal possession of a weapon in the second and third degrees, andsentencing him to an aggregate term of 35 years, unanimously modified, as a matter of discretionin the interest of justice, to the extent of directing that, as to each defendant, all sentences beserved concurrently, resulting in new aggregate terms of 25 years, and otherwise affirmed.
We reject defendant Black's arguments concerning the weight and sufficiency of theevidence supporting his conviction (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's determinations concerning identification. A victim made a reliable lineup identification,and her inability to identify Black at trial was satisfactorily explained.
The court properly denied defendant Butts's suppression motion. Neither of the lineups [*2]at issue was unduly suggestive, since in each lineup the participantswere reasonably similar to defendant in appearance, and any differences, when viewed in light ofthe descriptions given by the witnesses, did not create a substantial likelihood that defendantwould be singled out for identification (see People v Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990];People v Santiago, 2 AD3d 263, 264 [2003], lv denied 2 NY3d 765 [2004]).
Butts's claim that certain testimony violated the hearsay rule and the Confrontation Clause isunpreserved and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits.
We reject Black's claim that the court unlawfully imposed consecutive sentences for robberyand weapon possession. The evidence established that Black, while acting in concert with otherpersons, possessed the weapon at a time other than during the robbery, and with a separate intentto use it unlawfully against other potential victims (see People v Salcedo, 92 NY2d 1019[1998]; People v Sell, 283 AD2d 920, 922 [2001], lv denied 96 NY2d 867[2001]; compare People vHamilton, 4 NY3d 654 [2005]).
We decline to invoke our interest of justice jurisdiction to dismiss the noninclusoryconcurrent count of third-degree weapon possession (see People v Spence, 290 AD2d223 [2002], lv denied 98 NY2d 641 [2002]; People v Kulakov, 278 AD2d 519[2000], lv denied 96 NY2d 785 [2001]).
We find the sentences excessive to the extent indicated. Concur—Gonzalez, P.J.,Friedman, Moskowitz, Renwick and DeGrasse, JJ.