| People v Jackson |
| 2010 NY Slip Op 08499 [78 AD3d 1685] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Wylie Jackson,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Patrick B. Shanahan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), renderedJuly 23, 2009. The judgment convicted defendant, upon a jury verdict, of attempted robbery in thesecond degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]) andcriminal possession of a weapon in the third degree (§ 265.02 [1]). We conclude that theevidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d620, 621 [1983]), is legally sufficient to establish defendant's identity as the perpetrator (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Here, two witnesses testified during thetrial that they observed defendant commit the crimes and that they were able to view his faceimmediately before he committed them. Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
Contrary to the contention of defendant, "[t]he police had reasonable suspicion to stop and detain[him] for a showup identification procedure 'based on the totality of the circumstances, including a radiotransmission providing a general description of the perpetrator[ ],' " the proximity of defendant to thesite of the attempted robbery, the brief period of time between the attempted robbery and the discoveryof defendant near the crime scene, and the observation by the officer of defendant, who matched thatdescription (People v Owens, 39 AD3d1260, 1261 [2007], lv denied 9 NY3d 849 [2007]; see People v Casillas, 289AD2d 1063, 1063-1064 [2001], lv denied 97 NY2d 752 [2002]). In addition, "[t]he policehad probable cause to arrest defendant after the victim identified him during the showup identificationprocedure" (People v Dumbleton, 67AD3d 1451, 1452 [2009], lv denied 14 NY3d 770 [2010]; see People v Mobley, 58 AD3d 756[2009], lv denied 12 NY3d 785 [2009]). Contrary to defendant's further contention, " 'theshowup identification procedure, which was conducted in geographic and temporal proximity to thecrime, was not unduly suggestive' " (People vAustin, 73 AD3d 1471 [2010], lv denied 15 NY3d 771 [2010]; see e.g. People v Judware, 75 AD3d841, 843 [2010], lv denied 15 NY3d 853 [2010]; People v Parris, 70 AD3d 725, 726 [2010]). [*2]Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Fahey, Lindley, Sconiers and Gorski, JJ.