| People v Concepcion |
| 2009 NY Slip Op 08860 [68 AD3d 404] |
| December 1, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Miguel Concepcion, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Michael Gross, J., at hearing; John W. Carter, J.,at jury trial and sentence), rendered November 23, 2007, convicting defendant of robbery in thefirst degree (four counts), robbery in the second degree (two counts) and criminal possession of aweapon in the second degree, and sentencing him, as a second violent felony offender, to anaggregate term of 20 years, unanimously affirmed.
The court properly denied defendant's suppression motion. Under the particularcircumstances, the single-photo showup conducted at a police station did not create a substantiallikelihood of irreparable misidentification. Even assuming, without deciding, that this procedurewas inappropriate under People v Riley (70 NY2d 523 [1987]) because of its location,notwithstanding the fact that it occurred approximately an hour after the crime, we neverthelessconclude that it was confirmatory of an untainted identification the victims had already made(see e.g. People v Gilbert, 295 AD2d 275 [2002], lv denied 99 NY2d 558[2002]). The victims had already pointed defendant out to the police, on the street, immediatelyafter the robbery. Although it was a different team of officers who chased defendant, arrestedhim and recovered the robbery weapon, the circumstances, including the very specific andaccurate description provided by the victims before the photo showup, preclude any reasonablepossibility that defendant was not the same person the victims had identified. In any event, anyerror was harmless in view of the overwhelming circumstantial evidence, independent ofidentification testimony, establishing defendant's guilt.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on the merits(see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998];People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884[1993]). To the extent there were improprieties, they did not deprive defendant of a fair trial. Wesimilarly reject that portion of defendant's ineffective assistance of counsel claim that relates tothe absence of objections to the prosecutor's summation.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters [*2]outside the record concerningcounsel's strategic decisions (see People v Rivera, 71 NY2d 705, 709 [1988]; Peoplev Love, 57 NY2d 998 [1982]). The record suggests that counsel had strategic reasons for theconduct challenged on appeal, relating to the fact that defendant's defense emphasized claims ofdeliberate misidentification and police misconduct rather than simple mistaken identity. On theexisting record, to the extent it permits review, we find that defendant received effectiveassistance under the state and federal standards (see People v Benevento, 91 NY2d 708,713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Sweeny,Moskowitz, Acosta and Abdus-Salaam, JJ.