| People v Tlatelpa |
| 2013 NY Slip Op 04837 [107 AD3d 1022] |
| June 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jorge Tlatelpa, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco,Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli J.), rendered July 12, 2011, convicting him of attempted murder in the seconddegree, assault in the first degree, and criminal use of a firearm in the first degree (twocounts), 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 testimony.
Ordered that the judgment is affirmed.
The complainant's initial identification of the defendant at the scene of the incidentwas spontaneous, and not the result of a police-arranged confrontation (see People vDuuvon, 77 NY2d 541, 546 [1991]; People v Leuthner, 216 AD2d 327[1995]). The subsequent showup identification made by the complainant was notimpermissibly suggestive, as it was conducted in close spatial and temporal proximity tothe crime (see People v Duuvon, 77 NY2d at 544-545; see also People vBlanche, 90 NY2d 821, 822 [1997]). Moreover, the complainant's subsequentviewing of a photograph of the defendant was not impermissibly suggestive (see People v Carlton, 85 AD3d1196 [2011]). Thus, the County Court properly denied that branch of the defendant'somnibus motion which was to suppress identification testimony.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Defense counsel provided meaningful representation (see People v Baldi, 54NY2d 137, 146-147 [1981]). The actions, or inaction, of counsel challenged by thedefendant did not constitute [*2]ineffective assistance ofcounsel (see People v Orengo, 286 AD2d 344, 345 [2001]), and she could nothave been ineffective for failing to advance motions or arguments that had no chance ofsuccess (see People vCaban, 5 NY3d 143, 152 [2005]).
The defendant's remaining contention is without merit. Dillon, J.P., Angiolillo,Dickerson and Cohen, JJ., concur.