| People v Linder |
| 2014 NY Slip Op 00833 [114 AD3d 1200] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAdonis Linder, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered July 29, 2009. The judgment convicted defendant, upon a nonjury verdict, ofassault in the second degree, criminal possession of a weapon in the third degree andattempted robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof assault in the second degree (Penal Law § 120.05 [2]), criminal possession of aweapon in the third degree (§ 265.02 [3]), and attempted robbery in the first degree(§§ 110.00, 160.15 [2]), defendant contends that County Court erred infailing to suppress identification evidence on the ground that it was the product of anunlawful detention. Although defendant's omnibus motion sought, inter alia, suppressionof any and all evidence obtained by the police as a result of what he alleged to have beenan unlawful detention, the court held only a Wade hearing and did not rule on thelegality of the detention. By failing to seek a ruling on that part of his omnibus motionchallenging the detention and by failing to object to the identification testimony on thatground at trial, defendant abandoned his challenge to the detention (see People v Adams, 90 AD3d1508, 1509 [2011], lv denied 18 NY3d 954 [2012]; People v Anderson, 52 AD3d1320, 1321 [2008], lv denied 11 NY3d 733 [2008]). In any event, we notethat "the factual assertions contained in defendant's moving papers were insufficient towarrant a hearing" on the issue of the alleged illegality of the detention (People v Battle, 109 AD3d1155, 1157 [2013]; see People v Mendoza, 82 NY2d 415, 425-427 [1993]).
Having viewed a copy of the photo array shown by the police to the victims, wefurther conclude that the court properly determined that the array was not undulysuggestive, inasmuch as "the subjects depicted in the photo array are sufficiently similarin appearance so that the viewer's attention is not drawn to any one photograph in such away as to indicate that the police were urging a particular selection" (People v Quinones, 5 AD3d1093, 1093 [2004], lv denied 3 NY3d 646 [2004]; see People v Plumley, 111AD3d 1418, 1420 [2013]). Nor was there any evidence at the Wade hearingindicating that the identification procedures employed by the police were undulysuggestive (see People v McCurty [appeal No. 2], 60 AD3d 1406, 1407[2009], lv denied 12 NY3d 856 [2009]).[*2]
Viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude thatthe evidence is legally sufficient to establish defendant's commission of the offenses inquestion. Not only was defendant identified at trial by one of the victims, but the Peopleintroduced a notarized letter written by defendant prior to trial in which he admitted hisinvolvement in the crimes and accepted "full responsibility for the homeinvasion/shooting" he was alleged to have committed with others. Although it was one ofthe codefendants and not defendant who shot the victim in the foot outside the victim'sapartment, there is a valid line of reasoning and permissible inferences that could lead arational person to conclude that defendant, who was chasing the victim at the time with aloaded assault rifle, shared the codefendant's intent to cause injury to the victim, anelement of assault in the second degree as charged under Penal Law § 120.05 (2).Further, viewing the evidence in light of the elements of the crimes in this nonjury trial(see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that the indictment failedto give him fair notice "as to what specific conduct was alleged" in the two countscharging assault in the second degree, i.e., counts two and nine (see CPL 470.05[2]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary todefendant's related contention, the failure of the indictment to distinguish between thetwo counts of assault does not constitute a mode of proceedings error to which the rulesof preservation do not apply. With respect to his mode of proceedings contention,defendant relies on, inter alia, People v McNab (167 AD2d 858, 858 [1990]),wherein we held that the "defendant's right to be tried and convicted of only those crimescharged in the indictment is fundamental." Here, unlike in McNab and itsprogeny (see e.g. People vBoykins, 85 AD3d 1554 [2011], lv denied 17 NY3d 814 [2011]; People v Comfort, 31 AD3d1110 [2006], lv denied 7 NY3d 847 [2006]; People v Burns, 303AD2d 1032 [2003]), there is no danger that defendant was convicted of an unindictedact. Count nine of the indictment was dismissed prior to trial, leaving count two as theonly assault charge. As the People correctly note, the grand jury minutes make clear thatthe prosecutor, in instructing the grand jurors, stated that count two related to theshooting of the victim outside his apartment and that count nine related to the shootinginside the apartment. In rendering its verdict, the court offered detailed findings of factdemonstrating that it found defendant guilty of assault in the second degree for theshooting outside the apartment. It therefore follows that defendant was convicted undercount two of the same conduct for which he was indicted under count two, and there wasno variance in fact or theory (cf. People v Grega, 72 NY2d 489, 495-496[1988]). In addition, because this was a bench trial, there is no danger that the convictionwas the result of a non-unanimous verdict (cf. Boykins, 85 AD3d at 1555; People v Jacobs, 52 AD3d1182, 1183 [2008], lv denied 11 NY3d 926 [2009]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Lindley, Valentino and Whalen, JJ.