| People v Moore |
| 2014 NY Slip Op 04520 [118 AD3d 916] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Horace Moore, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott and Allegra Glashausser ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Reichbach, J.), rendered October 19, 2010, convicting him of murder in the seconddegree, after a nonjury trial, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Tomei, J.), of that branch of the defendant's omnibus motionwhich was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to establish hisintent to kill the victim. As he concedes, this contention is unpreserved for appellatereview, since he failed to move for a trial order of dismissal at the close of the People'scase (see CPL 290.10, 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Clarke, 65 AD3d1055 [2009]; People vHoward, 50 AD3d 823 [2008]). In any event, viewing the evidence in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]),we find that it was legally sufficient to establish the defendant's guilt beyond a reasonabledoubt. Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, heartestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). The evidence presented at trial supported a finding that the defendantintended to kill the victim. Intent may be inferred from a defendant's conduct, as well asthe circumstances surrounding the crime (see People v Massey, 61 AD3d 1433, 1433-1434 [2009];People v Pickens, 60 AD3d699, 700 [2009]; People vSmith, 35 AD3d 635 [2006]; People v Campbell, 300 AD2d 501, 502[2002]; People v Fils-Amie, 291 AD2d 358, 359 [2002]). Here, the defendant'shomicidal intent could be inferred from evidence of the number, location, and severity ofthe stab wounds he inflicted upon the victim.
There is no merit to the defendant's claim that he was deprived of the effective [*2]assistance of counsel by his counsel's decision not to movefor a trial order of dismissal with respect to the murder count, since the evidence waslegally sufficient to support his conviction of that crime (see People v Caban, 5 NY3d143, 152 [2005]; People vGoley, 113 AD3d 1083, 1085 [2014]; People v Cooper, 59 AD3d 1052, 1053 [2009]).
The defendant was not deprived of a fair trial by the admission of two excerpts of anaudio recording of a telephone call between him and his friends placed while he wasincarcerated on Rikers Island. The excerpts revealed the defendant threatening theindividuals whom he believed had turned him in to the police and requesting that hisfriends kill those individuals. The first excerpt was admissible because it contained whatcould be interpreted as an admission by the defendant that he had killed the victim(see People v Chico, 90 NY2d 585, 589 [1997]; People v Case, 113 AD3d872 [2014]; People vPeele, 73 AD3d 1219, 1221 [2010]). Any ambiguity as to the incident to whichthe defendant was referring affected only the weight to be given to the recording, not itsadmissibility (see People v Case, 113 AD3d at 873; People v Shenouda,283 AD2d 446 [2001]). Both excerpts were admissible on the ground that they reflectedhis consciousness of guilt (seePeople v Green, 92 AD3d 953, 954 [2012]; People v Peele, 73 AD3d at1221; People v Malik, 265 AD2d 577, 578 [1999]). The court properlyconcluded that the probative value of these excerpts outweighed their potential forprejudice.
Contrary to the defendant's contention, the hearing court did not err in failing tosuppress the lineup identification testimony. While "the fillers used in a lineup must besufficiently similar to the defendant so that no characteristic or visual clue would orientthe viewer toward the defendant as a perpetrator of the crimes charged" (People v Jean-Baptiste, 57AD3d 566, 566 [2008]), "[t]here is no requirement . . . that a defendantin a lineup be surrounded by people nearly identical in appearance" (People vChipp, 75 NY2d 327, 336 [1990]). Here, the photograph taken of the lineup reflectsthat the fillers sufficiently resembled the defendant. Any differences in height and weightwere adequately obscured by the fact that the participants were seated, holding a card infront of their torsos (see Peoplev Reyes, 60 AD3d 873, 874 [2009]; People v Brown, 47 AD3d 826, 827 [2008]; People vShaw, 251 AD2d 686 [1998]). There was no evidence that the police positioned thedefendant in a suggestive manner, since the defendant chose his seat and position number(see People v Cruz, 220 AD2d 253 [1995]; see People v Rudolph, 161AD2d 115, 116 [1990]).
Contrary to the defendant's contention, the court providently exercised its discretionin denying his motion, made during the trial, to reopen the suppression hearing. Thedefendant failed to demonstrate that the new facts he proffered in support of the motionwere likely to affect the original determination (see CPL 710.40 [4]; People vClark, 88 NY2d 552, 555 [1996]; People v Fuentes, 53 NY2d 892, 894[1981]). Skelos, J.P., Lott, Roman and LaSalle, JJ., concur.