| People v Miller |
| 2012 NY Slip Op 01520 [93 AD3d 882] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark B.Miller, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown, for respondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Fulton County (Hoye, J.),rendered September 18, 2009, upon a verdict convicting defendant of the crimes of robbery in thesecond degree, criminal possession of a weapon in the third degree and menacing in the seconddegree.
On the evening of October 16, 2008, a Hess Express store in the Town of Perth, FultonCounty was robbed of $871.33 by a white male wearing a multicolored mask and wielding ahandgun. The ensuing investigation, which included executing a search warrant on November 20,2008 at premises occupied by defendant, eventually resulted in defendant being indicted onDecember 22, 2008 for alleged crimes arising from the October 16, 2008 incident. Following atrial, he was convicted by a jury of robbery in the second degree, criminal possession of aweapon in the third degree and menacing in the second degree. He was sentenced to concurrentprison terms, the longest of which was 12 years with five years of postrelease supervision.Defendant appeals.
We consider first defendant's contention that the verdict was against the weight of theevidence. Since a different verdict would not have been unreasonable, we "must, like the trier offact below, weigh the relative probative force of conflicting testimony, and the relative strengthof conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]). The primary issue was one ofidentity, i.e., whether defendant was the masked person who committed the crimes. From [*2]photographs produced by the store's surveillance camera,defendant's former girlfriend identified defendant as the perpetrator by his physique, hair andhairline. She also recognized the clothes he was wearing, the mask and the handgun. The searchof defendant's premises had resulted in the seizure of clothes that matched those worn by theperpetrator as well as a silver handgun with an orange tip, which was consistent with thedescription given by the victim of the weapon used in the crime. Defendant was also identifiedfrom the surveillance photographs as the masked perpetrator by two others who knew him andhad recently interacted with him. A police officer who had past dealings with defendant went tohis home a few days after the robbery on an unrelated matter and, when he subsequently viewedphotographs from the robbery circulated to law enforcement, he recognized defendant as themasked perpetrator. An assistant manager at the Hess store, who had known defendant in highschool and had worked with him some during the short time that he had been employed at theHess store about six months before the robbery, recognized defendant when looking at aphotograph from the incident. Viewing the evidence in the record in a neutral light whileaccording deference to the jury's credibility determinations (see People v Bleakley, 69NY2d 490, 495 [1987]), we find that the verdict was fully supported by the weight of theevidence.
Defendant argues that the search warrant application was not supported by probable causebecause the information in the application was stale. We are unpersuaded. "The question ofwhether information is stale for the purpose of establishing probable cause cannot be resolvedmerely by counting the number of days between the events giving rise to the information and theissuance of the warrant. Information may be acted upon as long as the practicalities dictate thatprobable cause existent in the past may continue [which] depends largely upon the property'snature" (People v Walker, 285 AD2d 660, 661-662 [2001], lv denied 97 NY2d659 [2001], cert denied 535 US 1064 [2002] [internal quotation marks and citationsomitted]; accord People v Church,31 AD3d 892, 894 [2006], lv denied 7 NY3d 866 [2006]; People v Teribury,91 AD2d 815, 816 [1982]). Here, the crime occurred on October 16, 2008. The officer who wascalled by defendant to defendant's premises for an unrelated incident went there on October 19,2008 and he observed guns and a sophisticated security system. Several days later, that officeridentified defendant from surveillance photographs of the crime that were circulated to lawenforcement. The search warrant application was made on November 18, 2008, and the searchoccurred two days later. Under the circumstances, it was not unreasonable to find that, about amonth after the crime, defendant would still be hiding the handgun used in the crime, as well asother identifying objects such as clothes worn during the crime, at his home, which was protectedby a security system (see People v Walker, 285 AD2d at 662; Kamins, New York Search& Seizure § 4.02 [3] [c]).
County Court did not err in determining that the identification of defendant by the assistantmanager was not the result of unduly suggestive conduct by police. "Where a witness issufficiently familiar with the defendant such that there is little or no risk that police suggestionmay have led to misidentification, the identification is merely confirmatory and the requirementsof CPL 710.30 do not apply" (People vBoland, 89 AD3d 1144, 1145 [2011]; see People v Rodriguez, 79 NY2d 445,450 [1992]). Here, the assistant manager testified at a Rodriguez hearing that she hadknown defendant in high school, she recognized him as a regular customer in the Hess store andshe remembered him as working in the same Hess store approximately six months before therobbery. Moreover, although she did not immediately recognize the perpetrator when the policefirst showed her a photograph of him from the surveillance camera, she stated that when she wenthome and looked at photographs from the surveillance camera available on a local newspaper'sWeb site, she recognized defendant at that time as the masked [*3]perpetrator. She then contacted authorities and indicated thatdefendant was the masked person in the surveillance photograph, whereupon police brought anunmasked photograph of defendant for her to view. Since she sufficiently knew defendant andidentified him as the perpetrator from a photograph with him masked and before police hadpresented her with an unmasked photograph (or otherwise indicated to her that he was a suspect),her identification of defendant was not the result of unduly suggestive conduct by police (see People v Carter, 57 AD3d1017, 1017-1018 [2008], lv denied 12 NY3d 781 [2009]; see also People vClark, 85 NY2d 886, 888 [1995]; People v McCarter, 179 AD2d 780, 781 [1992],lv denied 79 NY2d 950 [1992]).
Defendant asserts that County Court should have given the jury an adverse inferenceinstruction based on the destruction by the Fulton County Sheriff's Office of the tape of thevictim's 911 call. The tape was destroyed pursuant to routine policy after 60 days. Defendant wasnot indicted until more than 60 days after the date of the crime. Since there is no indication thatthe tape was destroyed in bad faith or that defendant was prejudiced by its unavailability, we findthat County Court "did not abuse its discretion by denying defendant's motion for an adverseinference" charge (People v Griffin, 300 AD2d 743, 744 [2002], lv denied 99NY2d 614 [2003]).
Defendant's argument that he did not receive the effective assistance of counsel is withoutmerit. Contrary to defendant's contention, the record reveals that counsel mounted a meaningfuland appropriate challenge to the search warrant. Furthermore, counsel made proper pretrialmotions, conducted diligent and searching cross-examination of witnesses, made numerousmeritorious objections, pursued a cogent defense strategy, and otherwise provided meaningfulrepresentation (see People v Henry, 95 NY2d 563, 565-566 [2000]; People v Fulwood, 86 AD3d 809,811 [2011], lv denied 17 NY3d 952 [2011]; People v Echavarria, 53 AD3d 859, 864 [2008], lv denied11 NY3d 832 [2008]).
Spain, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.