| People v Jordan |
| 2012 NY Slip Op 05110 [96 AD3d 640] |
| June 26, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JunalJordan, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., at suppressionhearing; Roger S. Hayes, J., at jury trial and sentencing), rendered May 8, 2009, convictingdefendant of two counts each of robbery in the first and second degrees, and sentencing him, as asecond felony offender, to an aggregate term of eight years, unanimously affirmed.
The record supports the court's determination that, notwithstanding an identificationprocedure suppressed by the court, the victim had an independent source for his identification ofdefendant (see Neil v Biggers, 409 US 188, 199-200 [1972]; People v Williams,222 AD2d 149 [1996], lv denied 88 NY2d 1072 [1996]). The victim's attention wasdrawn to defendant before the robbery, he observed defendant under good lighting conditions, atclose range, for a significant period of time, and he gave a detailed description of defendant thatincluded a distinctive physical feature.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters outside the record concerning counsel's reasons for not seeking toreopen the hearing (see People v Rivera, 71 NY2d 705, 709 [1988]; People vLove, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we findthat defendant received effective assistance under the state and federal standards (see Peoplev Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668[1984]).
Defendant was originally charged with two other robberies, and was identified by thecomplainants in those crimes in the same lineup employed in this case. Defendant argues thatdefense counsel was ineffective because he failed to move to reopen the Wade hearingafter new evidence—DNA evidence in one instance and the statement of a participant inthe crime in the other—led prosecutors to dismiss the charges in the other cases. Evenassuming that it would have been sound strategy for counsel to afford the court the opportunity torevisit the issue, defendant has not established a reasonable probability that pursuing this coursewould have led to suppression of the identification.
Independent source analysis turns on the particular circumstances under which a particularwitness observed the perpetrator. Contrary to defendant's suggestion, the demonstration thatdefendant was misidentified by witnesses to other crimes in a lineup common [*2]to this case does not compel the conclusion that the identificationhere was the product of undue suggestiveness. Indeed, in one of the dismissed cases, thecomplaining witness identified defendant in a lineup even though—unlike the victim inthis case—she was neither exposed to a suggestive showup nor told, after pickingdefendant's photograph, that she had picked out the suspect. This highlights that the identificationin this case was not necessarily the product of unconstitutional suggestiveness.Concur—Gonzalez, P.J., Tom, Andrias, Acosta and Freedman, JJ.