| People v Leibert |
| 2010 NY Slip Op 02021 [71 AD3d 513] |
| March 16, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Pernell Leibert, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Olivia Sohmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered March9, 2007, convicting defendant, after a jury trial, of criminal possession of stolen property in thethird degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years,unanimously affirmed.
The court properly denied defendant's motion to suppress identification evidence. After ajeweler had already identified defendant, from a store surveillance videotape, as the person whohad sold him a distinctive necklace, detectives returned to the store to continue the investigation.During a conversation among the detectives, a detective took out photographs of defendant andhis twin brother. The jeweler unexpectedly came up from behind and spontaneously identifieddefendant's photograph. Regardless of whether this event can be viewed as the equivalent of asingle-photo showup, or an inadequate photo array, we find no basis for suppression of anyidentification evidence. The accidental viewing was not a police-arranged procedure (seePeople v Clark, 85 NY2d 886, 888-889 [1995]; People v Curry, 287 AD2d 252, 253[2001], lv denied 97 NY2d 680 [2001], 98 NY2d 636 [2002]; People v Powell,269 AD2d 178 [2000], lv denied 94 NY2d 951 [2000]). To the extent that a completelyunintended viewing may still be subject to constitutional scrutiny (cf. Raheem vKelly, 257 F3d 122, 137 [2d Cir 2001], cert denied sub nom. Donnelly v Raheem,534 US 1118 [2002] [unintentionally suggestive procedure]), the identification was sufficientlyreliable despite any suggestiveness in the viewing. Aside from having identified defendant fromthe videotape before viewing his photo, the jeweler also identified defendant at a lineup sixweeks later, which was sufficient time to attenuate any taint from the viewing of the photo (see People v Thompson, 17 AD3d138 [2005], lv denied 5 NY3d 795 [2005]), especially since there were significantchanges in defendant's appearance by the time of the lineup (see People v Rodriguez, 64NY2d 738, 741 [1984]). Contrary to defendant's argument, the circumstances did not require thepolice to include defendant's brother in the lineup. Finally, any error in the receipt ofidentification evidence was harmless in view of the overwhelming evidence establishingdefendant's identity as the person who sold the necklace.
Defendant's challenges to the sufficiency of the evidence are unpreserved and we decline[*2]to review them in the interest of justice. As an alternativeholding, we find that the evidence was legally sufficient. We further find that the verdict was notagainst the weight of the evidence (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]). Since defendant sold the stolenproperty within 15 hours from the time it was taken in a robbery, the jury was entitled to inferfrom defendant's recent, exclusive and unexplained possession that he knew it was stolen(see e.g. People v Rogers, 186 AD2d 438, 439 [1992], lv denied 81 NY2d 765[1992]). In addition, defendant (who was acquainted with the victim's girlfriend) saw the victimwearing the unique necklace and medallion two hours before the robbery, defendant avoidedgiving the jeweler his identification after the sale, and there was evidence permitting a rationalinference that defendant knew the robbers. There was ample evidence, including the credibletestimony of the victim and the jeweler, to warrant the conclusion that the value of the propertyexceeded the statutory threshold.
Defendant's challenges to the admissibility of certain evidence are without merit. Each ofthese items provided circumstantial evidence of defendant's guilt, particularly with regard to theelement of knowledge, and defendant's arguments go to the weight to be accorded the evidence,not its admissibility (see generally People v Mirenda, 23 NY2d 439, 452-454 [1969]).
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Catterson,McGuire, Acosta and Renwick, JJ.