| People v Rodriguez |
| 2012 NY Slip Op 05840 [98 AD3d 530] |
| August 1, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisRodriguez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered February 10, 2010, convicting him of robbery in the first degree (two counts), attemptedrobbery in the first degree, and criminal possession of a weapon in the second degree (twocounts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of those branches of the defendant's omnibus motion which were to suppresscertain identification testimony and statements made by the defendant to law enforcementofficials.
Ordered that the judgment is modified, on the law, by vacating the convictions of criminalpossession of a weapon in the second degree under counts 16 and 17 of the indictment, vacatingthe sentences imposed thereon, and dismissing those counts of the indictment; as so modified,the judgment is affirmed.
The charges against the defendant arise from robberies of two bars that occurred onSeptember 23, 2007, and September 30, 2007, respectively. The defendant also was charged withtwo counts of criminal possession of a weapon in the second degree, with respect to an incidentthat occurred on October 15, 2007. The trial evidence established that, on October 15, 2007, thedefendant was present at the bar that was the scene of the September 23, 2007, robbery(hereinafter the first bar). An individual at the first bar allegedly observed a vehicle outside; thatvehicle bore the same license plate as a vehicle that another witness had seen leaving the scene ofthe September 30, 2007, robbery. A witness at the first bar called the police, and the defendantwas apprehended in the vicinity of the first bar. The defendant subsequently told the police,among other things, that on October 15, 2007, he and his wife had driven to the first bar in thewife's vehicle. The police subsequently found a firearm inside a bag, within a crate located in thecargo area of that vehicle, a sports-utility vehicle.
After a hearing, the Supreme Court denied that branch of the defendant's omnibus motionwhich was to suppress his oral and written statements to police. The Supreme Court also deniedthat branch of the omnibus motion which was to suppress the identification testimony of awitness who identified the defendant after she observed him in a holding cell at a police stationhouse.[*2]
After a jury trial, the defendant was found not guilty ofthe charges relating to the robbery of September 23, 2007. The defendant was found guilty of twocounts of robbery in the first degree and one count of attempted robbery in the first degree withrespect to the robbery of September 30, 2007. The jury also found the defendant guilty of twocounts of criminal possession of a weapon in the second degree.
Contrary to the defendant's contention, the Supreme Court did not err in denying that branchof his omnibus motion which was to suppress identification testimony related to thestation-house identification by a witness. "Police-arranged identifications, confrontationsbetween a witness and a defendant which have come about at the deliberate direction of thepolice for the distinct purpose of identifying the perpetrator, implicate due process concerns" (People v Gomez, 60 AD3d 782,783 [2009]). However, accidental show-up identifications that result "from mere happenstance,such as where a witness is present in police headquarters for some purpose other than toeffectuate an identification, and by chance views and identifies a suspect who is being processedin another room" (People v Dixon, 85 NY2d 218, 223 [1995]), do not raise due processconcerns, "as long as the spontaneous encounter was not caused by police misconduct orquestionable police procedures" (People v Gomez, 60 AD3d at 783; see People vNunez, 216 AD2d 494, 495 [1995]). Here, the Supreme Court did not err in concluding,based on the hearing record, that the station-house identification at issue was accidental and notthe result of police misconduct or questionable police procedures (see People v Gomez,60 AD3d at 783; People v Nunez, 216 AD2d at 495; People v Mitchell, 185AD2d 249, 251 [1992]). Consequently, the Supreme Court properly denied that branch of thedefendant's omnibus motion which was to suppress that witness's identification testimony.
In addition, the Supreme Court did not err in denying that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials (see People v Gordon, 74 AD3d1090 [2010]; People v Ward, 241 AD2d 767, 769-770 [1997]; People vStokes, 233 AD2d 194 [1996]; seealso People v DeCampoamor, 91 AD3d 669, 670 [2012]; People v Salamone, 61 AD3d1400, 1401 [2009]; People vAlexander, 51 AD3d 1380, 1381-1382 [2008]).
The Supreme Court did not improvidently exercise its discretion in denying the defendant'sapplication to present an expert witness as to the reliability of identification testimony. Where acase "turns on the accuracy of eyewitness identifications and there is little or no corroboratingevidence connecting the defendant to the crime," a trial court must permit expert testimony as toeyewitness identifications where, inter alia, that testimony is relevant, based on generallyaccepted scientific principles, proffered by a qualified expert, and on a topic "beyond the ken ofthe average juror" (People vLeGrand, 8 NY3d 449, 452 [2007]; see People v Santiago, 17 NY3d 661, 669 [2011]; People v Abney, 13 NY3d 251,267 [2009]). Here, however, there was sufficient corroborating evidence connecting thedefendant to the crimes to obviate the need for expert testimony, including the defendant'sstatements to law enforcement officials, and other corroborating evidence, such that the SupremeCourt did not improvidently exercise its discretion in precluding the proposed expert testimony(see People v Abney, 13 NY3d at 269; People v Hall, 86 AD3d 450, 452 [2011]; People v Fernandez, 78 AD3d726, 726-727 [2010]; People vSmith, 57 AD3d 356, 357 [2008]; People v Chisolm, 57 AD3d 223, 223-224 [2008]).
However, in connection with the two counts of criminal possession of a weapon in thesecond degree under counts 16 and 17 of the indictment, the People failed to adduce legallysufficient evidence of the defendant's possession of a weapon. The People's theory was that thedefendant constructively possessed the gun that was found in the vehicle at the time of his arrest.However, viewed in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), the evidence failed to demonstrate that the defendant constructivelypossessed that gun. In particular, there was insufficient evidence that the defendant exerciseddominion or control over that gun as, inter alia, the defendant was not in the vehicle when he wasapprehended, the vehicle did not belong to him, and the gun was found in a rear cargo area of thevehicle, within a bag and a crate. Further, there was no proof that the gun recovered from thatvehicle on the date of the arrest was connected to the robbery of September 30, 2007, and noother evidence tending to show the defendant's dominion or control over the gun. Under thesespecific circumstances, there was legally insufficient proof of the defendant's constructivepossession of that weapon (see People v Huertas, [*3]32AD3d 795 [2006]; People v Burns,17 AD3d 709 [2005]; see alsoPeople v Martin, 81 AD3d 1178, 1179-1180 [2011]; People v Echeverri, 3 AD3d 576 [2004]). Accordingly, the twocounts of criminal possession of a weapon in the second degree under counts 16 and 17 of theindictment must be dismissed.
The sentences imposed on the remaining counts—the two counts of robbery in the firstdegree, and the count of attempted robbery in the first degree—were not excessive (seePeople v Suitte, 90 AD2d 80 [1982]). Angiolillo, J.P., Belen, Chambers and Austin, JJ.,concur.