| People v Currie |
| 2014 NY Slip Op 03855 [117 AD3d 1074] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Leroy Currie, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, CamilleO'Hara Gillespie, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered September 5, 2006, convicting him of robbery in the first degree(five counts), criminal possession of a weapon in the fourth degree, and endangering thewelfare of a child, upon a jury verdict, and sentencing him, as a second violent felonyoffender, to five consecutive determinate terms of imprisonment of 20 years on theconvictions of robbery in the first degree, followed by five years of postreleasesupervision, and concurrent definite terms of imprisonment of one year each on theconvictions of criminal possession of a weapon in the fourth degree and endangering thewelfare of a child, with these sentences to run concurrently with the sentences imposedon the robbery convictions. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by providing that the sentences imposed on the convictions of robbery in the firstdegree shall run concurrently with each other; as so modified, the judgment isaffirmed.
The defendant contends in his pro se supplemental brief that the identificationprocedure used by the police with one of the complainants, in which she was shown asketch of the perpetrator derived from a description given by another complainant, wasimpermissibly suggestive. However, we agree with the Supreme Court that the procedureused by the police was not impermissibly suggestive. In any event, the court properlyheld that the complainant's observation of the defendant during the robbery gave her anindependent source upon which to make her in-court identification (see People vHenderson, 170 AD2d 532, 533 [1991]; People v Clark, 155 AD2d 548[1989]). Additionally, contrary to the defendant's contention in his pro se supplementalbrief, the People established in the first instance that the photographic array and lineupprocedures employed were not improper, and the defendant failed to establish that theprocedures were unduly suggestive (see People v Chipp, 75 NY2d 327, 335-336[1990]; People v Morency,104 AD3d 877, 877 [2013]).
The defendant failed to preserve for appellate review his contentions that he wasdeprived of his rights to due process and a fair trial by certain comments made by theprosecutor during summation which improperly commingled evidence concerning thefive robberies, and by the Supreme Court's failure to issue an instruction to the jurydirecting the jurors to consider the evidence as to each incident separately (seeCPL 470.05 [2]; People v Manley, 293 AD2d 628 [2002]). In any event, where adefendant is tried for more than one crime, the prosecution may argue that the overallpattern tends to prove that the same person committed the crimes if they sharesufficiently distinctive circumstances (see People v Lewis, 101 AD3d 1154, 1154 [2012];People v McRae, 276 AD2d 332 [2000]). Here, the robberies were sufficientlydistinctive, and similar to each other, as to establish a modus operandi, such that, insummation, the prosecutor was properly permitted to comment upon the similarities (see People v Lewis, 101 AD3d1154 [2012]; People vSalton, 74 AD3d 997 [2010]; People v Ramos, 37 AD3d 740 [2007]). Moreover, underthe circumstances of this case, since the defendant's identity was a primary issue at trial,and the robberies, which all shared the same distinctive modus operandi, were properlyjoined for trial (see People v Mack, 235 AD2d 548 [1997]), a charge that therobberies were distinct and separate and that evidence of guilt as to one of the robberiescould not be considered as evidence of guilt as to the others would have been improper(see People v Rios, 245 AD2d 470 [1997]; People v Lewis, 175 AD2d885 [1991]).
There is no merit to the defendant's contention, raised in his pro se supplementalbrief, that he was deprived of the effective assistance of counsel at trial or at sentencing(see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Baldi,54 NY2d 137, 147 [1981]; Strickland v Washington, 466 US 668 [1984]).
The sentence imposed was excessive to the extent indicated (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's contention raised in point one of his pro se supplemental brief iswithout merit. The defendant's remaining contentions raised in his pro se supplementalbrief are unpreserved for appellate review and, in any event, without merit. Balkin, J.P.,Dickerson, Chambers and Hall, JJ., concur.