| People v Davis |
| 2014 NY Slip Op 01851 [115 AD3d 1167] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JabreDavis, Appellant. |
—[*1] Jabre Davis, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered March 30, 2010. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon 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 upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [3]), defendant contends in his main andpro se supplemental briefs that the verdict is against the weight of the evidence. Wereject that contention. As defendant concedes, he was present when the victim was shotin the head at close range, and he was identified as the shooter in separate showupprocedures by two eyewitnesses to the shooting, both of whom later identified defendantin a lineup. Moreover, one of the eyewitnesses also identified defendant in a surveillancevideo taken at a store that defendant had entered shortly before the shooting occurred.The video showed defendant and the three other men who were with him when thevictim was shot, one of whom defendant claims to have been the shooter. Uponobserving the four men in the video, the eyewitness informed the police that, although heinitially doubted whether he had correctly identified defendant in the showup procedure,he was now certain that defendant was the person he had seen shoot the victim. At trial,both eyewitnesses unequivocally identified defendant as the shooter. The eyewitnessesdid not know defendant prior to the shooting, and neither had any apparent motive toaccuse him falsely.
In addition to the eyewitness testimony, the People introduced evidence that, after theshooting, defendant ran from the scene and hid in a nearby house, which was surroundedby the police. Defendant refused to come out of the house for approximately 30 minutesand, when he eventually emerged, he was wearing a different shirt than the one he hadbeen wearing when the victim had been shot. Defendant then lied to the police, statingthat he had not heard any shots being fired and that he had not observed the victiminvolved in an altercation immediately before the fatal shot was fired. Defendant'sactions following the shooting evinced a consciousness of [*2]guilt.
As defendant correctly notes, both eyewitnesses testified that the shooter had beenwearing a white T-shirt with air brushing on the front and back, and the surveillancevideo showed that defendant was wearing a white T-shirt with air brushing on the frontonly, while another man present at the time of the shooting had been wearing a whiteT-shirt with air brushing on the front and back. The other man in a white T-shirt was notapprehended and was not identified. Defendant also points to the fact that the policesearched the house into which defendant fled, as well as the surrounding neighborhood,and did not find any firearms. We note, however, that the prosecutor argued thatdefendant had sufficient time in which to hide the murder weapon before he entered thehouse and that, given the chaotic scene following the shooting, the eyewitnesses weresimply mistaken regarding the presence of air brushing on the back of the shooter'sT-shirt.
This case turned largely upon the reliability, as opposed to the credibility, of the twoeyewitnesses who repeatedly and consistently identified defendant as the shooter, andneither of whose identification was influenced by the other. We are mindful that"mistaken eyewitness identifications play a significant role in many wrongfulconvictions" (People vSantiago, 17 NY3d 661, 669 [2011]), and we are cognizant of our duty toconduct an independent assessment of all of the proof (see People v Delamota, 18NY3d 107, 116-117 [2011]). In our view, however, this is not an appropriate case tosubstitute our reliability determinations for those of the jury, inasmuch as theidentifications of defendant by the eyewitnesses were not "incredible and unbelievable,that is, impossible of belief because [they were] manifestly untrue, physically impossible,contrary to experience, or self-contradictory" (People v Rumph, 93 AD3d 1346, 1347 [2012], lvdenied 19 NY3d 967 [2012] [internal quotation marks omitted]; see People vWallace, 306 AD2d 802, 802-803 [2003]). "Sitting as the thirteenth juror. . . [and] weigh[ing] the evidence in light of the elements of the crime[s] ascharged to the other jurors" (People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that, although a different verdict would not have been unreasonable, it cannotbe said that the jury failed to give the evidence the weight it should be accorded (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Kalen, 68 AD3d1666, 1666-1667 [2009], lv denied 14 NY3d 842 [2010]).
Defendant further contends that the identifications of him by the two eyewitnesseswere the product of inherently suggestive showup procedures, and that County Courttherefore erred in denying his motion to suppress their identification testimony. We rejectthat contention as well. Although showup identification procedures are generallydisfavored (see People v Ortiz, 90 NY2d 533, 537 [1997]), such procedures arepermitted "where [they are] reasonable under the circumstances—that is, whenconducted in close geographic and temporal proximity to the crime—and theprocedure used was not unduly suggestive" (People v Brisco, 99 NY2d 596, 597[2003]; see Ortiz, 90 NY2d at 537; People v Jackson, 78 AD3d 1685, 1685-1686 [2010],lv denied 16 NY3d 743 [2011]). Here, the showups were conducted within 70minutes of the shooting, during the "course of a continuous, ongoing investigation" (People v Woodard, 83 AD3d1440, 1441 [2011], lv denied 17 NY3d 803 [2011]; see Brisco, 99NY2d at 597), and less than one half of a mile from the crime scene. Thus, the courtproperly denied defendant's motion to suppress the subject identification testimony.
Contrary to defendant's further contention, the identification of him by one of theprosecution witnesses in the store surveillance video was not unduly suggestive. "[T]hereis nothing inherently suggestive" in showing a witness a surveillance video depicting thedefendant and other individuals, provided that the "defendant was not singled-out,portrayed unfavorably, or in any other manner prejudiced by police conduct or commentor by the setting in which [the defendant] was taped" (People v Edmonson, 75NY2d 672, 676-677 [1990], rearg denied 76 NY2d 846 [1990], certdenied 498 US 1001 [1990]). Here, defendant was shown in the video with threeother people, one [*3]of whom defendant claims to havebeen the shooter, and defendant was not singled out or portrayed unfavorably, or in anyother manner prejudiced. In a related contention, defendant asserts that the identificationof him in the surveillance video is tantamount to an identification from a photo array, andthat the court therefore erred in allowing the witness in question to testify at trial that heidentified defendant in the video. Defendant failed to preserve that contention for ourreview, and we decline to exercise our power to review it as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
There is no merit to defendant's contention that the lineup procedures employed bythe police were unduly suggestive. Although defendant and one filler have somewhatlighter skin than the other participants, it is well settled that the police need not surrounda defendant in a lineup with individuals nearly identical in appearance (see People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People v Diggs, 19 AD3d1098, 1099 [2005], lv denied 5 NY3d 787 [2005], amended on rearg21 AD3d 1438 [2005]). Having reviewed photographs of defendant with the other lineupparticipants, we conclude that the "the alleged variations in appearance between thefillers and the defendant were not so substantial as to render the lineup impermissiblysuggestive" (People vBrown, 89 AD3d 1032, 1033 [2011], lv denied 18 NY3d 922 [2012]).
We have reviewed defendant's remaining contentions in his main and pro sesupplemental briefs and conclude that they lack merit. Present—Centra, J.P.,Fahey, Lindley, Sconiers and Whalen, JJ.