| People v Green |
| 2013 NY Slip Op 04623 [107 AD3d 915] |
| June 19, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marcus Green, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer and Steven A.Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Hubert, J.), rendered June 17, 2010, convicting him of burglary in the first degree, rapein the first degree, unlawful imprisonment in the first degree, and menacing in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, viewing the evidence in the light mostfavorable to the prosecution (see People v Danielson, 9 NY3d 342, 349 [2007];People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish beyond a reasonable doubt the element of forcible compulsion (seePenal Law § 130.35 [1]). "Incredibility as a matter of law may result [w]hen all ofthe evidence of guilt comes from a single prosecution witness who gives irreconcilabletestimony pointing both to guilt and innocence, because in that event the jury is leftwithout basis, other than impermissible speculation, for its determination of either" (People v Calabria, 3 NY3d80, 82 [2004] [internal quotation marks omitted]; see People v Fratello, 92NY2d 565, 573 [1998]; People v Jackson, 65 NY2d 265, 272 [1985]). Here, theminor discrepancies between the complainant's testimony and her two statements to thepolice, and between the two statements themselves, did not render her testimonyincredible as a matter of law, but merely raised issues for resolution by the jury (see People v Wilson, 50 AD3d711 [2008]; People vSedney, 6 AD3d 632, 633 [2004]). Moreover, upon our independent reviewpursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People v Danielson, 9 NY3d at 348; People v Romero, 7 NY3d633 [2006]). The discrepancies between the complainant's prior statements to thepolice and her trial testimony were "fully explored by the defense counsel and adequatelybrought to the jury's attention" (People v Johnson, 139 AD2d 594, 595 [1988];see People v Reid, 82AD3d 1268 [2011]; People v Bigelow, 106 AD2d 448, 450 [1984]), andpresented "questions of fact for the jury, to be determined, not only from the words, butalso from the demeanor, interest and motives of the witnesses" (People vBigelow, 106 AD2d at 450 [internal quotation marks omitted]; see People v Jean-Marie, 67AD3d 704, 705 [2009]; People v Sorenson, 225 AD2d 566, 567 [1996];People v Casseus, 199 AD2d 525, 526 [1993]). The credibility determinationreflected in the jury's verdict was supported by the record.[*2]
Contrary to the defendant's contention, thehearing court did not err in denying that branch of his omnibus motion which was tosuppress his identification by the complainant as having been tainted by the photographicarray shown her by the police. "In determining whether a photographic array was undulysuggestive the hearing court should consider whether there was any substantiallikelihood that the defendant would be singled out for identification" (People v Burroughs, 98 AD3d583, 583 [2012] [internal quotation marks omitted]; see People v Chipp, 75NY2d 327, 336 [1990]; Peoplev Dunlap, 9 AD3d 434, 435 [2004]). While the People concede that thebackground in the defendant's photograph is lighter than that in the other fivephotographs, it cannot be said that this difference rendered the array unduly suggestive,particularly since the photographs showed "full views of individuals who weresubstantially similar in appearance to the defendant" (People v Tedesco, 143AD2d 155, 156 [1988]; see People v Boria, 279 AD2d 585, 586 [2001];People v Sawyer, 253 AD2d 501 [1998]; People v Martin, 245 AD2d308 [1997]; People v Guzman, 220 AD2d 614, 615 [1995]; People vEmmons, 123 AD2d 475, 476 [1986]).
Likewise, the text messages from the defendant to the complainant were properlyadmitted into evidence. Since the content of the text messages "made no sense unless[they were] sent by defendant" (People v Pierre, 41 AD3d 289, 291 [2007]), the textmessages themselves were sufficient to authenticate that they were sent by the defendant(see id. at 291). As to the authenticity of the photographs of the text messages,the complainant's testimony that they were, indeed, "actual photographs of the screen of[her] telephone," and that she saw the detective taking the photographs, was sufficient toestablish "that the [text messages had] been accurately and fairly reproduced," therebyproviding a foundation for admission of the photographs (People v McGee, 49NY2d 48, 60 [1979]; see People v Arena, 48 NY2d 944, 945 [1979]).
There is no merit to the defendant's contention, raised in his pro se supplementalbrief, that he was denied the effective assistance of counsel. To the contrary, it is clearfrom the record that he was afforded meaningful representation at every stage of theproceedings (see People vCaban, 5 NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708,712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). In light of the DNAproof and text messages, trial counsel reasonably chose to pursue the defense that thedefendant and the complainant had engaged in consensual sex.
The remaining arguments in the defendant's pro se supplemental brief areunpreserved for appellate review and, in any event, without merit. Rivera, J.P.,Leventhal, Sgroi and Lott, JJ., concur.