| People v Jones |
| 2014 NY Slip Op 04514 [118 AD3d 912] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Jones, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, SholomJ. Twersky, Nicholas N. George, and Alexander C. Robinson of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Balter, J.), rendered October 26, 2011, convicting him of criminal possession of aweapon in the second degree (two counts) and reckless endangerment in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Ingram, J.), of that branch of the defendant's omnibus motionwhich was to suppress identification testimony.
Ordered that the judgment is affirmed.
The 17-year-old defendant was convicted, upon a jury verdict, of two counts ofcriminal possession of a weapon in the second degree and one count of recklessendangerment in the second degree based on an incident which occurred on June 7,2010, at approximately 4 a.m., on East 29th Street in Brooklyn. The complaining witnesstestified that, while working as a security guard at a club, he encountered the defendantsix times as the defendant entered and exited the club. The witness also testified that henoticed a fracas outside the club as it was closing, in which the defendant was involved,which prompted the witness to enter his vehicle and move it. The witness further testifiedthat, as he entered his vehicle, the crowd dispersed and he saw the defendant, who waswearing an orange plaid shirt, heading toward East 29th Street, almost running. Secondsafter the witness turned his vehicle onto East 29th Street, he saw sparks, heard gunshots,and saw the defendant firing shots, two of which struck his vehicle.
The police arrived within minutes and received a radio call that a possible suspectwas around the corner, where the arresting officer observed the defendant crouchedbetween two parked cars. As the defendant was surrounded by the police, the witnessidentified the defendant as the person who shot at his vehicle.
[*2] After the jury found the defendant guilty on all counts,the Supreme Court denied the defendant's request to be sentenced as a youthful offender,based, inter alia, on the defendant's prior adjudication as a juvenile delinquent forcriminal possession of a weapon in the second degree.
Contrary to the defendant's contention, the hearing court properly denied that branchof his omnibus motion which was to suppress the showup identification made by thecomplaining witness near the scene of the crime. " 'While showup procedures aregenerally disfavored, they are permissible, even in the absence of exigent circumstances,when they are spatially and temporally proximate to the commission of the crime and notunduly suggestive' " (People v Cuesta, 103 AD3d 913, 915 [2013], quoting People v Berry, 50 AD3d1047, 1048 [2008]; seePeople v Sain, 111 AD3d 964 [2013]; People v Miller, 68 AD3d 1135 [2009]). The identificationtook place within minutes of the crime, in close proximity to the crime scene. Moreover,the lack of undue suggestiveness in the showup identification was established throughthe testimony of the arresting officer, who briefly spoke with the complaining witnessbefore he and the witness separately drove around the corner to the showup.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of the two counts of criminal possession of a weapon in the seconddegree (see Penal Law § 265.03 [1] [b]; cf. People v Arroyo,54 NY2d 567, 578 [1982]; People v Gelmi, 113 AD3d 790 [2014]; People v Breazil, 110 AD3d913 [2013]; People vJones, 108 AD3d 779 [2013]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987];People v Gelmi, 113 AD3d790 [2014]; People vSanabria, 110 AD3d 1012 [2013]). Upon reviewing the record here, we aresatisfied that the verdict of guilt as to those crimes was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in denying the defendant's request for youthful offender treatment (seeCPL 720.20 [1]; People vGreen, 110 AD3d 825 [2013]; People v Barrett, 105 AD3d 862, 864 [2013]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are unpreserved for appellate review and, in any event, withoutmerit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,85-86 [1982]). Eng, P.J., Austin, Hinds-Radix and LaSalle, JJ., concur.