| People v Bassett |
| 2013 NY Slip Op 08698 [112 AD3d 1321] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BryanBassett, Appellant. |
—[*1]
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered September 9, 2010. The judgment convicted defendant, upon a jury verdict, ofrobbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the second degree (Penal Law § 160.10 [2] [b]). Viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "Although a different result would not have been unreasonable, the jury was inthe best position to assess the credibility of the witnesses and, on this record, it cannot besaid that the jury failed to give the evidence the weight it should be accorded" (People v Orta, 12 AD3d1147, 1147 [2004], lv denied 4 NY3d 801 [2005]).
We reject defendant's further contention that the showup identification procedureresulting in identifications made by two witnesses was unduly suggestive and thatCounty Court erred in refusing to suppress the identifications. Prompt showupidentification procedures that are conducted in geographic and temporal proximity to thecrime "are not 'presumptively infirm,' and in fact have generally been allowed"(People v Ortiz, 90 NY2d 533, 537 [1997], quoting People v Duuvon, 77NY2d 541, 543 [1991]). Here, the showup identification procedure was reasonablebecause it was conducted within 200 yards of the scene of the crime, within 20 minutesof the commission of the crime, and in the course of a continuous, ongoing investigation(see People v Brisco, 99 NY2d 596, 597 [2003]; People v Lewis, 97 AD3d1097, 1098 [2012], lv denied 19 NY3d 1103 [2012]). Moreover, the twowitnesses were placed in different police vehicles and remained apart throughout theshowup identification procedure. Thus, " 'it cannot be said that the [witnesses] were insuch proximity while viewing [defendant] that there was an increased likelihood that ifone of them made an identification the other[ ] would concur' " (People v Woodard, 83 AD3d1440, 1441 [2011], lv denied 17 NY3d 803 [2011]).
Defendant's contention that he was denied a fair trial based on the prosecutor'simproper [*2]questions on cross-examination ofdefendant and improper comments during summation is not preserved for our reviewinasmuch as defendant failed to object to those instances of alleged misconduct (seeCPL 470.05 [2]). We decline to exercise our power to review defendant's contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; see also People v Washington,89 AD3d 1516, 1516-1517 [2011], lv denied 18 NY3d 963 [2012]). Finally,the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra,Lindley, Sconiers and Valentino, JJ.