| People v Cedeno |
| 2014 NY Slip Op 00234 [113 AD3d 695] |
| January 15, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Assad Cedeno, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered November 19, 2010, convicting him of gang assault in the firstdegree and criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review so much of an order of the samecourt dated December 11, 2009, as, after a hearing, denied those branches of thedefendant's omnibus motion which were to suppress certain identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the presence of the victim's blood at the crime scenein the vicinity of certain showup identifications rendered related identification testimonyinadmissible is unpreserved for appellate review (see People v Person, 8 NY3d 973, 974 [2007]; People v Waters, 91 AD3d977 [2012]). In any event, this contention, as well as the defendant's othercontentions regarding the court's denial of his motion to suppress certain identificationtestimony, are without merit. The pretrial showup identifications of the defendant, whichtook place at the scene of the crime and at the station house, were reasonable under thecircumstances and were not unduly suggestive (see People v Ortiz, 90 NY2d 533,533, 537 [1997]; People v Duuvon, 77 NY2d 541, 545 [1991]; People v Calero, 105 AD3d864, 865 [2013]; People vJulien, 100 AD3d 925, 926 [2012]; People v Hicks, 78 AD3d 1075 [2010]; People v Crumble, 43 AD3d953 [2007]; People v Bitz, 209 AD2d 709, 709-710 [1994]; People vGrassia, 195 AD2d 607 [1993]; People v Bond, 156 AD2d 573, 573 [1989]).
The defendant's contention that the trial court improperly admitted prior unchargedcrime evidence against him is without merit. Such testimony established the witness'sability to identify the defendant as one of the individuals who participated in the allegedcrimes (see People v Gines, 36 NY2d 932, 932-933 [1975]; People v Mobley, 58 AD3d756, 756 [2009]). In addition, such testimony was probative of the defendant'smotive and intent, and it provided necessary background information about the nature ofthe relationship between the witness and the defendant, placing the charged conduct incontext (see People vDorm, 12 NY3d 16, 19 [2009]; People v Till, 87 NY2d 835, 837[1995]; People v Thornton,105 AD3d 779, 780 [2013]). In light of the trial court's repeated limitinginstructions, the probative value of this evidence outweighed the potential prejudice tothe defendant (see People vWinter, 89 AD3d 966 [2011]; People v Cornish, 280 AD2d 552, 553[2001]).[*2]
The defendant's request for a missing witnesscharge with respect to two witnesses to the subject incident was properly denied by thetrial court as untimely (seePeople v Whitlock, 95 AD3d 909, 910 [2012]; People v Sealy, 35 AD3d510 [2006]; People v Breen, 292 AD2d 459 [2002]; People vWoods, 275 AD2d 332 [2000]). In any event, the defendant failed to meet hisburden of establishing his prima facie entitlement to such a charge (see People vGonzalez, 68 NY2d 424, 430 [1986]; People v Whitlock, 95 AD3d at 910;People v Rodriguez, 77AD3d 975, 976 [2010]; People v Smith, 49 AD3d 904 [2008]).
The trial court's admission of codefendant Jason Villanueva's redacted statement tothe police did not violate the rule articulated in Bruton v United States (391 US123 [1968]), because the subject redaction would not have caused the jurors to "realizethat the confession refers specifically to the defendant" (Gray v Maryland, 523US 185, 193 [1998]; see People v Borgos, 168 AD2d 628 [1990]; People vJohnson, 162 AD2d 620, 620-621 [1990]; People v Marcus, 137 AD2d 723[1988]; cf. People v Khan, 200 AD2d 129 [1994]; People v Hussain, 165AD2d 538 [1991]; People v Sutter, 162 AD2d 644 [1990]).
Furthermore, the admission of Detective Wilkowski's testimony regarding statementsmade to him by the defendant's self-described girlfriend did not violate the Brutonrule (see Bruton v United States, 391 US 123 [1968]) or the defendant's rightof confrontation (see People vWilson, 101 AD3d 764, 765-766 [2012]; cf. People v Berry, 49 AD3d 888, 889 [2008]; People v Johnson, 7 AD3d732 [2004]; People v Geoghegan, 68 AD2d 279, 284 [1979], affd 51NY2d 45 [1980]). However, as the defendant correctly contends, the statements made toWilkowski by the defendant's girlfriend constituted hearsay and, therefore, were notadmissible (see People v Wilson, 101 AD3d at 765; People v Kass, 59 AD3d77, 86 [2008]). Nevertheless, since the evidence of the defendant's guilt wasoverwhelming, and there is no significant probability that the error contributed to thedefendant's conviction, the error was harmless (see People v Crimmins, 36 NY2d230, 241-242 [1975]; People v Wilson, 101 AD3d at 765). Mastro, J.P., Roman,Miller and Hinds-Radix, JJ., concur.