| People v Ervin |
| 2014 NY Slip Op 04513 [118 AD3d 910] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Weldon J. Ervin, Appellant. |
Mark Diamond, New York, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and MonicaM.C. Leiter of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Ayres, J.), rendered April 30, 2012, convicting him of attempted robbery in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing pursuant to a stipulation in lieu of motions (Donnino, J.), of thesuppression of identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied thesuppression of the showup identifications made by two witnesses near the scene of thecrime. Showup identifications are permissible, even in the absence of exigentcircumstances, where they are conducted in close geographic and temporal proximity tothe crime, and the procedure used was not unduly suggestive (see People vBrisco, 99 NY2d 596, 597 [2003]; People v Sain, 111 AD3d 964 [2013]; People v Dunbar, 104 AD3d198, 217 [2013], lv granted 21 NY3d 942 [2013]; People v Cuesta, 103 AD3d913, 915 [2013]). Here, the showup identifications took place approximately 25minutes after the commission of the crime and within blocks of the crime scene (see People v Sain, 111 AD3d964 [2013]; People v Cuesta, 103 AD3d at 915; People v Gonzalez, 57 AD3d560, 561 [2008]; People vBerry, 50 AD3d 1047, 1048 [2008]). The People met their initial burden ofestablishing the reasonableness of the police conduct and the lack of unduesuggestiveness in the showup identifications through the testimony of the officer whotransported the witnesses to the showup, and provided a detailed account of the physicalcircumstances of the procedure (see People v Charles, 110 AD3d 1094 [2013]; People v Calero, 105 AD3d864, 865 [2013]; People v Cuesta, 103 AD3d at 915; People vGonzalez, 57 AD3d at 561). The burden thus shifted to the defendant to prove thatthe procedure was unduly suggestive (see People v Ortiz, 90 NY2d 533, 537[1997]; People v Gonzalez, 57 AD3d at 561), which the defendant failed toestablish. The fact that the witnesses were told prior to the showup that two individualswho matched their descriptions of the perpetrators had been detained did not render theprocedure unduly suggestive (see People v Morgan, 302 AD2d 983, 984[2003]).
[*2] The defendant's contention thatthe evidence was legally insufficient to support his conviction of attempted robbery inthe second degree is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt of attempted robbery in the seconddegree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt of attempted robberyin the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that he was deprived of a fair trial by certain commentsmade by the prosecutor on summation is unpreserved for appellate review since he failedto object to the comments he now challenges (see CPL 470.05 [2]; People v Jorgensen, 113 AD3d793 [2014]; People vBeverly, 112 AD3d 843 [2013]). In any event, the challenged remarks wereproper because they were a fair response to comments made by defense counsel onsummation, did not denigrate the defense, and were within the bounds of appropriateargument based on the evidence (see People v Galloway, 54 NY2d 396, 399[1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Izurieta, 116 AD3d881 [2014]; People vNelson, 112 AD3d 744 [2013]). Further, defense counsel's failure to object tothe subject comments did not constitute ineffective assistance of counsel (see People v Fuhrtz, 115 AD3d760 [2014]; People vMcGowan, 111 AD3d 850 [2013]; People v Brown, 106 AD3d 754 [2013]; People v Friel, 53 AD3d667, 668 [2008]).
The defendant's contention that the Supreme Court failed to comply with themandates of CPL 400.21 before sentencing him as a second felony offender isunpreserved for appellate review (see People v Gilbert, 114 AD3d 874 [2014]; People v Sanabria, 110 AD3d1010 [2013]; People vWinslow, 100 AD3d 1031 [2012]). In any event, the defendant's contention iswithout merit, as the Supreme Court substantially complied with the requirements ofCPL 400.21 (see People v Bouyea, 64 NY2d 1140, 1142 [1985]; People v Gilbert, 114 AD3d874 [2014]; People vSanabria, 110 AD3d 1010 [2013]; People v Winslow, 100 AD3d 1031 [2012]). Eng, P.J.,Austin, Hinds-Radix and LaSalle, JJ., concur.