| People v Ford |
| 2013 NY Slip Op 07083 [110 AD3d 1368] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Mark Ford, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered January 12, 2012, upon a verdict convicting defendant of thecrime of burglary in the second degree.
The victim heard and did not respond to knocking on the front door of his apartmenton an afternoon in March 2011. Less than a minute later, he heard louder knocking at theback door. He looked out and saw a man walk away from the back door, pick up a rockin the yard and return toward the apartment. Upon hearing "a very loud bang," the victimcalled 911, giving a description of the individual as a black male, about 5 feet 10 inchestall, wearing a tan hoodie with a black and white backpack. Immediately thereafter, thevictim heard breaking glass and observed the individual on the back stairway of theapartment. He again called 911 and the individual then exited the building.
As police responded in two vehicles, one officer spotted and stopped defendant, whowas riding a bicycle near the victim's apartment and matched the description given by thevictim. Within about 10 to 15 minutes, the other officer brought the victim to the nearbystreet where defendant was being detained and the victim identified defendant as theindividual. Defendant was indicted for burglary in the second degree. His suppressionmotion was denied following a hearing. A jury convicted defendant of the charged crimeand County Court sentenced him to 10 [*2]years in prisonwith five years of postrelease supervision. Defendant appeals.
Defendant contends that the People's identification proof, based upon the testimonyof one witness, failed to establish by legally sufficient evidence and the weight of theevidence that he was the person who committed the crime. The identification testimonyof a single witness can be legally sufficient (see People v Armstrong, 11 AD3d 721, 723 [2004], lvdenied 4 NY3d 760 [2005]). However, if that witness "gives irreconcilable testimonypointing both to guilt and innocence" leaving the jury with no basis other thanspeculation to support a verdict, then the conviction cannot stand (People v Hampton, 21 NY3d277, 288 [2013] [internal quotation marks and citations omitted]; see People v Calabria, 3 NY3d80, 82 [2004]; People v Jackson, 65 NY2d 265, 272 [1985]). Viewed in thelight most favorable to the People (see People v Ramos, 19 NY3d 133, 136 [2012]), theidentification was legally sufficient. The victim testified about seeing defendant at afairly close range at the scene and he reported to police numerous characteristicsincluding, among other things, his race and gender, that he was wearing a tan outergarment and white hat, and that he was carrying a black and white checkered backpack.Moreover, the victim identified defendant as the individual at the showup conductedabout 10 to 15 minutes after seeing him at his apartment.
Turning to defendant's weight of the evidence argument, since a different verdictwould not have been unreasonable, we "must, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internalquotation marks and citations omitted]). The victim acknowledged on cross-examinationthat he probably could not have recognized the individual's face alone, but relied upon acombination of characteristics, including his face, race, size, type of clothing and color ofclothing. During the 911 call the victim incorrectly estimated the individual's height at 5feet 10 inches, whereas defendant was about 5 feet 3 or 4 inches, and the victim stated inthe 911 call that the individual was wearing a tan hoodie, whereas defendant had on a tanjacket over a hooded sweatshirt. The victim explained his incorrect height estimate asarising from the fact that his observations of defendant occurred when defendant was at adifferent surface level making it difficult to gauge height. Referring to defendant'sjacket/hoodie combination as simply a hoodie during the stress of a 911 call made duringa burglary in progress is not particularly surprising or important. The victim'stestimony—while containing some inconsistencies that were explored duringcross-examination—was not so contradictory or irreconcilable as to render itincredible. The jury weighed and accepted the victim's testimony and, upon exercisingour independent review and weighing the proof in the record, we are unpersuaded bydefendant's contention that the verdict was against the weight of the evidence.
Defendant asserts that he did not receive the effective assistance of counsel. "Toprevail on his claim that he was denied effective assistance of counsel, defendant mustdemonstrate that his attorney failed to provide meaningful representation. A single errormay qualify as ineffective assistance, but only when the error is sufficiently egregiousand prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d143, 152 [2005] [citations omitted]). Defendant relies primarily upon the fact thathis counsel did not question the victim about his preliminary hearingtestimony—where the victim indicated that he did not see the backpack at theshowup—when, at trial, he stated that he observed a black and white backpackduring the showup. Counsel effectively cross-examined the victim regarding severalpotential problems with his identification of defendant and, moreover, the record revealsthat counsel otherwise made appropriate motions, raised relevant objections, conductedmeaningful [*3]cross-examinations of witnesses, pointedout inconsistencies and weaknesses in the People's proof, and presented a cogentdefense. Counsel's failure to question the victim about the backpack inconsistency wasnot so egregious and prejudicial as to constitute one of the rare cases where a single errorresults in ineffectiveness (seePeople v Turner, 5 NY3d 476, 480 [2005]), and the record reveals thatdefendant received meaningful representation (see e.g. People v Prue, 26 AD3d 671, 671-672 [2006],lv denied 7 NY3d 816 [2006]; People v Gunney, 13 AD3d 980, 983 [2004], lvdenied 5 NY3d 789 [2005]; People v Brickle, 244 AD2d 700, 702 [1997],lv denied 91 NY2d 889 [1998]).
County Court did not err in denying defendant's motion to suppress identificationevidence as the product of an illegal stop and seizure. "[B]efore a police officer may stop. . . a person in a public place, he [or she] must have 'reasonable suspicion'that such person is committing, has committed or is about to commit a crime" (People v Brannon, 16 NY3d596, 601 [2011]; seePeople v Nesbitt, 56 AD3d 816, 818 [2008], lv denied 11 NY3d 928[2009]). "To justify such an intrusion, the police officer must indicate specific andarticulable facts which, along with any logical deductions, reasonably prompted thatintrusion" (People v Cantor, 36 NY2d 106, 113 [1975]; see People vHicks, 68 NY2d 234, 238 [1986]). The officer who stopped defendant wasresponding to the burglary in progress call and had reportedly received a description of ablack male wearing a tan jacket or hoodie with a white cap. The officer observeddefendant, who matched the description, on a bicycle within about four blocks of theburglary approximately 10 minutes after it had been reported. The close geographical andtemporal proximity, together with several matching identifying features, providedreasonable suspicion for stopping and briefly detaining defendant (see People v Robinson, 101AD3d 1245, 1245-1246 [2012], lv denied 20 NY3d 1103 [2013]; Peoplev Nesbitt, 56 AD3d at 818).
Defendant's argument that County Court abused its discretion in not imposing asanction on the People for failing to preserve defendant's clothing and backpack iswithout merit in that there was no significant prejudice since such property had beenreturned to defendant himself shortly after his arrest (cf. People v Doshi, 93NY2d 499, 506 [1999]; People v Smith, 242 AD2d 487, 487 [1997], lvdenied 91 NY2d 897 [1998]).
Stein, Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.