| People v Moss |
| 2009 NY Slip Op 08841 [67 AD3d 1027] |
| November 24, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rahsheem Moss, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Lauren Del Giorno and Joanna Hersheyof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered March 14, 2008, convicting him of robbery in the second degree and robbery in thethird degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Ayres, J.), of that branch of the defendant's omnibus motion which was tosuppress identification testimony.
Ordered that the judgment is affirmed.
To the extent the defendant relies on portions of the trial record in support of his contentionthat a showup identification procedure was unduly suggestive, this Court is precluded fromreviewing trial testimony in determining whether the hearing court acted properly (see People v South, 47 AD3d 734,735 [2008]; People v Kendrick, 256 AD2d 420 [1998]). The propriety of the hearingcourt's ruling must be determined only in light of the evidence that was before that court (seePeople v Gonzalez, 55 NY2d 720, 721-722 [1981], cert denied 456 US 1010[1982]; People v South, 47 AD3d at 735; People v Kendrick, 256 AD2d 420[1998]). Since the defendant did not seek to reopen the hearing based on the trial testimony, ormove for a mistrial, the question of whether the trial testimony undermined the hearing court'sdetermination with respect to the showup identification procedure is not properly before thisCourt (see People v Feinsod, 278 AD2d 335 [2000]; People v Kendrick, 256AD2d 420 [1998]). In any event, the defendant's contention in this regard is without merit(see People v Brisco, 99 NY2d 596, 597 [2003]; People v Ortiz, 90 NY2d 533,537 [1997]; People v Duuvon, 77 NY2d 541, 543 [1991]; People v Gonzalez, 57 AD3d 560,561 [2008]; People v Berry, 50AD3d 1047, 1048 [2008]).
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 [2007]), we nevertheless accordgreat deference to the factfinder'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 was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]). Rivera, J.P., Florio, Miller and Hall, JJ., concur.