| People v Woodard |
| 2011 NY Slip Op 02585 [83 AD3d 1440] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AlonzoWoodard, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered April 15, 2004. The judgment convicted defendant, upon a jury verdict, of burglary inthe first degree (two counts), assault in the second degree, assault in the third degree (fourcounts) and unlawful imprisonment in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the conviction of assault in the second degreeto attempted assault in the second degree and vacating the sentence imposed on the fourth countof the indictment and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Monroe County, for sentencing on the conviction of attempted assault in thesecond degree.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of burglary in the first degree (Penal Law § 140.30 [2], [3]), onecount of assault in the second degree (§ 120.05 [2]), and four counts of assault in the thirddegree (§ 120.00 [1]). Supreme Court properly refused to suppress the showupidentifications of defendant by the two victims. Although showup identification procedures aregenerally disfavored (see People v Ortiz, 90 NY2d 533, 537 [1997]), such procedures arepermitted "where [they are] reasonable under the circumstances—that is, when conductedin close geographic and temporal proximity to the crime—and the procedure used was notunduly suggestive" (People v Brisco, 99 NY2d 596, 597 [2003]; see Ortiz, 90NY2d at 537; People v Jackson, 78AD3d 1685 [2010], lv denied 16 NY3d 743 [2011]). Here, the showup identificationprocedure took place at the scene of the crime, within 90 minutes of the commission of the crimeand in the course of a continuous, ongoing investigation (see Brisco, 99 NY2d at 597; see People v Wall, 38 AD3d 1341[2007], lv denied 9 NY3d 852 [2007]; People v Boyd, 272 AD2d 898 [2000],lv denied 95 NY2d 850 [2000]). Inasmuch as the two victims were placed in differentpolice vehicles and remained apart throughout the showup identification procedure, "it cannot besaid that the [victims] were in such proximity while viewing [defendant] that there was anincreased likelihood that if one of them made an identification the other[ ] would concur"(People v Pross, 302 AD2d 895, 896 [2003], lv denied 99 NY2d 657 [2003][internal quotation marks omitted]; see also People v McGee, 294 AD2d 937 [2002],lv denied 98 NY2d 699 [2002]). We further note that the [*2]People presented testimony at the Wade hearing that, priorto the showup identification procedure, one of the victims spontaneously identified defendant asone of the perpetrators. Thus, the court properly refused to suppress the showup identification ofthat victim on the additional ground that the showup identification procedure was merelyconfirmatory (see People v Buskey,13 AD3d 1058 [2004]; People vBurroughs, 11 AD3d 1028 [2004], lv denied 3 NY3d 755 [2004]; People v Santiago, 2 AD3d 263[2003], lv denied 2 NY3d 765 [2004]).
Defendant's challenges to the legal sufficiency of the evidence are not preserved for ourreview inasmuch as he failed to renew his motion for a trial order of dismissal after presentingevidence (see People v Lane, 7NY3d 888, 889 [2006]; People vDeLee, 79 AD3d 1664 [2010]; People v Baker, 67 AD3d 1446 [2009], lv denied 14 NY3d769 [2010]). Nevertheless, we agree with defendant that the evidence of physical injury is legallyinsufficient to support his conviction of assault in the second degree, and we therefore exerciseour power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Although the victim testified that defendant and the codefendants attemptedto electrocute him by dousing him with water and then touching the frayed end of an electricalcord to his skin multiple times, the victim further testified that he felt only a "little shock." Thus,as the People correctly concede, they failed to present evidence establishing either physicalimpairment or substantial pain (see Penal Law § 10.00 [9]; People v Lewis,294 AD2d 847 [2002]). We reject defendant's further contention, however, that the electricalcord did not constitute a " '[d]angerous instrument' " (Penal Law § 10.00 [13]). Under thecircumstances in which it was used, the electrical cord was "readily capable of causing death orother serious physical injury" (id.; see generally People v Still, 26 AD3d 816, 817 [2006], lvdenied 6 NY3d 853 [2006]; People v Molnar, 234 AD2d 988 [1996], lvdenied 89 NY2d 1038 [1997]; People v Wade, 232 AD2d 290 [1996], lvdenied 89 NY2d 989 [1997]). We therefore modify the judgment by reducing defendant'sconviction of assault in the second degree to the lesser included offense of attempted assault inthe second degree (Penal Law §§ 110.00, 120.05 [2]; see CPL 470.15 [2][a]), and we remit the matter to Supreme Court for sentencing on the fourth count of theindictment. Viewing the evidence in light of the elements of the crime of burglary in the firstdegree as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdictwith respect to the counts of the indictment charging that crime is against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant's constitutional challenge to the persistent felony offender statute is not properlybefore us inasmuch as there is no indication in the record that the Attorney General was given therequisite notice of that challenge (see Executive Law § 71 [3]; People v Schaurer, 32 AD3d 1241[2006]). In any event, that contention is not preserved for our review (see People v Perez, 67 AD3d1324, 1326 [2009], lv denied 13 NY3d 941 [2010]; People v Phillips, 56 AD3d 1168[2008], lv denied 11 NY3d 928 [2009]), and it is without merit (see People v Porto, 16 NY3d 93,102 [2010]; see generally People vQuinones, 12 NY3d 116, 122-131 [2009], cert denied 558 US—, 130 S Ct104 [2009]; People v Rivera, 5NY3d 61, 66-68 [2005], cert denied 546 US 984 [2005]). Present—Scudder,P.J., Smith, Peradotto, Lindley and Green, JJ.