| People v Bolden |
| 2013 NY Slip Op 06179 [109 AD3d 1170] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWilliam Bolden, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered October 8, 2010. The judgment convicted defendant, upon a jury verdict,of robbery in the first degree and robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofrobbery in the first degree (Penal Law § 160.15 [3]) and robbery in the seconddegree (§ 160.10 [1]), defendant contends that the evidence is legally insufficientto support the conviction and that the verdict is against the weight of the evidencebecause the People failed to prove beyond a reasonable doubt that he was the person whocommitted the crimes with the codefendant, who was tried jointly with defendant andalso convicted. We reject defendant's contentions.
The evidence at trial established that the victim rode his bicycle to a gas station inBuffalo at 5:30 a.m. on the day in question. After purchasing cigarettes, the victimobserved a black Chevy Trailblazer with front-end damage pull up to the gas pump.There were two African-American men in the Trailblazer, one of whom the victim hadknown since childhood but whose name he could not recall. The victim approached theTrailblazer and chatted with the two men, who were drinking from a bottle of GreyGoose vodka. After approximately five minutes of conversation, the man whom thevictim knew exited the vehicle and struck the victim's head with the bottle. The otherman then slammed the victim to the ground and, while the victim was face-down on theground, one of the two perpetrators searched the victim's pockets and took his cell phone,cash and cigarettes before driving away in the Trailblazer. The victim rode his bicycle toa nearby pay phone and called 911. The police arrived within minutes and took astatement from the victim, who, according to one of the responding officers, appeareddisheveled and upset. The officers then began to search for the perpetrators.
Within 20 minutes of the robbery, the police observed a black Chevy Trailblazer withfront-end damage parked on the street within a quarter of a mile from the crime scene.Defendant was in the driver's seat of the vehicle, and the codefendant was in the frontpassenger's seat. After approaching the vehicle and detaining defendant and thecodefendant, both of whom are African-American, the police dialed the victim's cellphone number, [*2]whereupon a cell phone in the vehiclestarted to ring. The police seized the phone, which was later determined to belong to thevictim, along with a pack of cigarettes found in the center console. In addition, the policefound an empty bottle of Grey Goose vodka on the ground next to the vehicle, andanother bottle inside the vehicle. During a police-arranged showup identificationprocedure conducted within 30 minutes of the crime, the victim identified both defendantand the codefendant as the men who robbed him. At trial, the victim again made apositive identification of defendant and the codefendant, and he testified that during abreak in the trial defendant approached him and offered to give everything back to him.
Viewing the evidence in the light most favorable to the People, as we must (seePeople v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a "valid lineof reasoning and permissible inferences which could lead a rational person" to concludethat defendant participated in the robbery with the codefendant (People vBleakley, 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyid.). Even assuming, arguendo, that a different verdict would not have beenunreasonable, we conclude that it cannot be said that the jury failed to give the evidencethe weight it should be accorded (see People v Kalen, 68 AD3d 1666, 1666-1667 [2009],lv denied 14 NY3d 842 [2010]; see generally Bleakley, 69 NY2d at 495).
Defendant further contends that the police unlawfully seized him and that SupremeCourt therefore erred in refusing to suppress the physical evidence thereafter obtained bythe police. We reject that contention as well. As noted, within 20 minutes of the crime,defendant was observed in the driver's seat of a vehicle that matched the detaileddescription of the vehicle used by the robbers. The vehicle was located a quarter of amile from the crime scene, and defendant and the codefendant matched the generaldescription of the suspects provided by the victim. Based on those observations, thepolice had reasonable suspicion to detain defendant for investigatory purposes, includinga prompt showup identification procedure (see People v Roque, 99 NY2d 50, 54[2002]; People v Gonzalez, 91 NY2d 909, 910 [1998]; see generally People vHicks, 68 NY2d 234, 238-242 [1986]).
Although defendant did not request a Wade hearing, he neverthelesscontends on appeal that the showup identification procedure was unduly suggestive.Even assuming, arguendo, that this issue is properly before us, inasmuch as the courtaddressed the legality of the showup identification procedure in its decision, we rejectdefendant's contention. The showup identification procedure was not rendered undulysuggestive based on the fact that defendant was in handcuffs and in the presence of auniformed police officer (seePeople v Santiago, 83 AD3d 1471, 1471 [2011], lv denied 17 NY3d800 [2011]; People v Davis,48 AD3d 1120, 1122 [2008], lv denied 10 NY3d 957 [2008]), and there isno evidence in the record that the police otherwise suggested to the victim that eithersuspect was involved in the robbery.
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Peradotto, Carni and Lindley, JJ.