| People v Crosdale |
| 2013 NY Slip Op 00935 [103 AD3d 749] |
| February 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Linvial Crosdale, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered on March 1, 2010, convicting him of robbery in the first degree andunlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
The Supreme Court properly denied, after a hearing, that branch of the defendant'somnibus motion which was to suppress identification evidence. In determining whether aphotographic array displayed to an eyewitness was unduly suggestive, the hearing courtproperly determined that there was not a substantial likelihood that the defendant wouldbe singled out for identification. Two separate showings of a suspect's picture insuccessive photographic arrays are not per se impermissibly suggestive, even if thatsuspect is the only person whose photo was repeated in the successive photographicarrays (see People vDunlap, 9 AD3d 434, 435 [2004]). Furthermore, the large number ofphotographs viewed by the complainant herein militates against the presence ofsuggestiveness (see People vFields, 66 AD3d 799 [2009]). As the photo identification procedure was notunduly suggestive, the People were not required to establish an independent source forthe in-court identification of the defendant (see People v Fields, 66 AD3d 799 [2009]).
Contrary to the People's contention, the defendant's argument that the evidence waslegally insufficient to support his convictions of robbery in the first degree and unlawfulimprisonment in the second degree is preserved for appellate review (see CPL470.05 [2]). Viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), the evidence was legally sufficient toestablish the defendant's guilt of robbery in the first degree and unlawful imprisonmentin the second degree (see Penal Law §§ 160.15 [4]; 135.05).Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the verdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The trial court properly precluded the testimony of the defense's expert as it related[*2]to the phenomenon of "flashbulb memory." "A trialcourt may, in its discretion, admit, limit, or deny the testimony of an expert on thereliability of eyewitness identification, weighing a request to introduce such experttestimony against other relevant factors, such as the centrality of the identification issueand the existence of corroborating evidence" (People v Santiago, 17 NY3d 661, 668-669 [2011] [internalquotation marks omitted]). Here, after the court posed a direct inquiry to the defense'sexpert as to whether the phenomenon of flashbulb memory relates to the ability to makean identification, the expert replied that the literature on flashbulb memory had nottypically studied one's ability to make an identification. Thus, the court properlyprecluded the expert's testimony to the extent that it related to the concept of flashbulbmemory, as it was irrelevant to the issues presented by the case (see generally People vLeGrand, 8 NY3d 449 [2007]).
The defendant's contention that certain comments made by the prosecutor duringsummation deprived him of a fair trial is unpreserved for appellate review since he eitherfailed to object to such comments or failed to object on the specific grounds raised onthis appeal (see CPL 470.05 [2]; People v Heide, 84 NY2d 943 [1994]).In any event, the comments were either fair comment on the evidence and the reasonableinferences to be drawn therefrom, responsive to defense counsel's summation, orpermissible rhetorical comment (see People v Ashwal, 39 NY2d 105, 109-110[1976]; People v Stewart,89 AD3d 1044, 1045 [2011]).
There is no merit to the defendant's contention that he received ineffective assistanceof counsel because defense counsel elicited from the defendant's alibi witness the wrongdate of his arrest, thereby giving the impression that the witness proffered alibi evidencefor the wrong night (see generally People v Benevento, 91 NY2d 708 [1998]).Defense counsel elicited testimony from the defendant's witness supporting his alibi thathe was at home asleep at the time of the crime. Furthermore, the alibi witness's confusionabout the date that the police arrested the defendant did not diminish the legitimacy ofthe defendant's misidentification defense (see People v Henry, 95 NY2d 563, 566[2000]).
The defendant failed to preserve for appellate review his contention that hisconviction of unlawful imprisonment in the second degree should be vacated pursuant tothe merger doctrine, since the physical restraint imposed upon the complainant in thiscase was incidental to and inseparable from the substantive crime of robbery and,therefore, cannot support a separate charge for unlawful imprisonment (see People v Ocasio, 32 AD3d481 [2006]). In any event, this argument is without merit. The merger doctrine isintended to preclude conviction for kidnaping or unlawful imprisonment "based on actswhich are so much the part of another substantive crime that the substantive crime couldnot have been committed without such acts and that independent criminal responsibilitymay not fairly be attributed to them" (People v Bussey, 19 NY3d 231, 237 [2012] [internalquotation marks and citation omitted]; see generally People v Anekwe, 295AD2d 621 [2002]). The restraint in this case continued past the completion of the actsunderlying the robbery (see People v Armstrong, 250 AD2d 618 [1998]).Accordingly, the count of the indictment charging the defendant with unlawfulimprisonment in the second degree did not merge with the count charging him withrobbery in the first degree.
The defendant's remaining contentions are without merit. Balkin, J.P., Hall, Austinand Cohen, JJ., concur.