| People v Zohri |
| 2011 NY Slip Op 01723 [82 AD3d 493] |
| March 10, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Monzir Zohri, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered January 6,2009, as amended February 4, 2009, convicting defendant, after a jury trial, of grand larceny inthe fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years,unanimously affirmed.
On May 26, 2007, at 11:30 a.m., someone came up behind the 57-year-old victim and placedhis arm around her neck in a choke hold. The victim tried but was unable to grab the perpetrator'sarm, because she had a cast and sling on her own arm. The perpetrator ripped off the victim'schain and pendant. After the attack, the victim was able to turn and look at the perpetrator's facefor about three to five seconds. The victim described him as black, at least six feet tall, andappearing to be between 25 and 35 years old. He also had a shaved head, was "nice looking" and"clean cut." He was wearing a long sleeved, very dark green "knitted-type of shirt." Initially, thevictim stood at the corner "in a daze," but then she became angry and followed the perpetrator for15 minutes for several blocks, keeping him almost continuously in view from across the street.She observed him showing what she believed was her chain to two men. She continued to followhim, losing sight of him only when he entered a phone store. However, she saw him exit verysoon thereafter. He passed just inches away from her while she hid her face to avoid recognition.Within seconds of this encounter, the police arrived. After driving just two blocks with them, thevictim pointed out defendant, whereupon the police stopped him and eventually arrested him.The gold necklace was never found.
The court properly exercised its discretion when it denied defendant's application to presentexpert testimony on eyewitness identification. "[E]xpert testimony proffered on the issue of thereliability of eyewitness identification is not admissible per se; rather, the decision whether toadmit it rests in the sound discretion of the trial court, which should be guided by whether theproffered expert testimony would aid a lay jury in reaching a verdict" (People v Abney, 13 NY3d 251,266 [2009] [citations and internal quotation marks omitted]). "[W]here the case turns on theaccuracy of eyewitness identifications and there is little or no corroborating evidence connectingthe defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimonyon the reliability of [*2]eyewitness identifications" (People v LeGrand, 8 NY3d 449,452 [2007]).
Here, the victim followed defendant for about 15 minutes after the crime, watching him fromacross a street as he made what appeared to be efforts to sell the gold chain he had just stolenfrom her. When the police arrived, she gave them a detailed and fairly accurate description ofdefendant, including his clothing and shaved head. She then rode with the officers for two blocksand pointed out defendant. Between the crime and defendant's apprehension, the victimcontinuously kept defendant in sight, except for very brief periods under circumstances thatwould render mistaken identity highly unlikely.
Given the circumstances under which defendant was observed and apprehended, experttestimony on identification would have been of little or no value to the jury (see People v Austin, 46 AD3d195, 200-201 [2007], lv denied 9 NY3d 1031 [2008]). We need not decide whetherfactors that strongly enhance the reliability of an identification may obviate the need for experttestimony, because here there was "significant corroborating evidence," other than the victim'sidentification itself, that connected defendant with the crime (see People v Chisolm, 57 AD3d 223, 223-224 [2008], lvdenied 12 NY3d 782 [2009]; People v Austin, 46 AD3d at 200-201). Policetestimony placed defendant very close to the scene of the crime within 15 minutes after itoccurred, and established that he resembled the perpetrator the victim described, both in hisclothing and in his physical appearance.
Although it was not required to give an expanded charge on eyewitness identification (seePeople v Knight, 87 NY2d 873 [1995]; People v Whalen, 59 NY2d 273, 279[1983]), the court gave a thorough charge on that subject, and it was not required to add languagerequested by defendant regarding the lack of correlation between accuracy and confidence.Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.