| People v Best |
| 2014 NY Slip Op 05891 [120 AD3d 707] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Theodore Best, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lebowitz, J.), rendered June 10, 2011, convicting him of burglary in the second degree(three counts), burglary in the third degree (two counts), robbery in the second degree,and robbery in the third degree (two counts), upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, without a hearing, of the defendant's pretrialmotion to renew that branch of his omnibus motion which was to suppress evidence of alineup identification.
Ordered that the judgment is modified, on the law, by vacating the convictions ofburglary in the third degree (counts four and seven) and robbery in the third degree(count five), vacating the sentences imposed thereon, and dismissing those counts of theindictment; as so modified, the judgment is affirmed.
In October 2007 and November 2007, respectively, women were robbed in twoseparate incidents in Queens County. In each case, the victim lived in a multifamilyresidence served by an outside front door used by all residents to gain access to thebuilding, leading to a vestibule from which a resident could then gain access toindividual apartments. In each case, the perpetrator knocked on the outside front door ofthe victim's building, just after she had entered the vestibule. When each woman openedthe outside front door to her building, the perpetrator propped open the door with hisfoot, grabbed the victim's purse through the opening, thereafter entered the vestibule,struggled with the victim, and ran away with the purse. The first victim reported that,after the perpetrator took her purse, he entered a black car and drove away. She alsoprovided a license plate number for the car she saw, and a police investigation eventuallyled to the defendant. Each victim separately viewed a lineup conducted in December2007. Both victims identified the defendant as the perpetrator during the lineup, and attrial.
Prior to the trial, the defendant moved to suppress evidence of the lineupidentifications as unduly suggestive. The motion was denied and, almost two years later,the defendant moved to renew his suppression motion, contending that the lineup wasconducted in [*2]violation of his right to counsel. Thismotion also was denied. Subsequently, after a jury trial, the defendant was found guilty,in connection with the first incident, of burglary in the second degree (counts one andtwo), robbery in the second degree (count three), burglary in the third degree (countfour), and robbery in the third degree (count five). He was also found guilty inconnection with the second incident of burglary in the second degree (count six),burglary in the third degree (count seven), and robbery in the third degree (count eight).The defendant appeals.
First, contrary to the defendant's assertions, the Supreme Court did not err in denyinghis motion to renew. Clearly, the defendant knew of the circumstances of the lineup andwhether or not he asked for the assistance of counsel prior to the lineup. The defendant'sconclusory allegations, unsupported by any evidence or affidavit, were insufficient tosatisfy his burden of showing reasonable diligence in bringing the allegedly new facts tothe court's attention (see Peoplev Winkfield, 44 AD3d 499, 500 [2007]; People v Musgrove, 261 AD2d640, 641 [1999]).
At trial, the defendant requested a jury charge that he contended was relevant to theissue of "cross-racial identification" (State v Cromedy, 158 NJ 112, 115, 727 A2d457, 458 [1999]). However, on the record presented, the Supreme Court properly deniedthe defendant's requested jury charge (People v German, 45 AD3d 861, 861 [2007]; People v Ellison, 8 AD3d400, 401 [2004]).
The defendant's contention that the trial court violated the procedure for theconsideration of jury notes, as set forth in People v O'Rama (78 NY2d 270[1991]), is unpreserved for appellate review, as, under the circumstances of this case, theerror was not a mode of proceedings error, as defense counsel had notice of each of thejury's notes and failed to object when the error could have been cured (see People v Williams, 21NY3d 932, 935 [2013]; People v DeRosario, 81 NY2d 801, 803 [1993];People v Lykes, 81 NY2d 767 [1992]; People v Kahley, 105 AD3d 1322, 1324 [2013]; People v Jackson, 52 AD3d1052, 1053-1054 [2008]).
The defendant's claim of ineffective assistance of counsel, asserted in his pro sesupplemental brief, is without merit. He was not deprived of his right to the effectiveassistance of counsel, who provided meaningful representation (see People vHenry, 95 NY2d 563, 565-566 [2000]; People v Benevento, 91 NY2d 708,712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Walston, 101 AD3d1156, 1156-1157 [2012], mod on other grounds 23 NY3d 986 [2014]).
However, as the People correctly concede, burglary in the third degree is alesser-included offense of burglary in the second degree, and robbery in the third degreeis a lesser-included offense of robbery in the second degree (see Penal Law§§ 140.25 [1] [b]; [2]; 140.20; see also Penal Law§§ 160.10 [2] [a]; 160.05). Thus, we vacate the defendant'sconvictions of burglary in the third degree (counts four and seven) and robbery in thethird degree (count five), vacate the sentences imposed thereon, and dismiss those countsof the indictment (see CPL 300.40 [3] [b]; People v Lee, 39 NY2d 388,390 [1976]; People v Ortiz,95 AD3d 1140, 1141 [2012]). Skelos, J.P., Chambers, Duffy and LaSalle, JJ.,concur.