| People v Carson |
| 2014 NY Slip Op 08166 [122 AD3d 1391] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWillie Carson, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered July 23, 2012. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree, attempted robbery in the first degree and attempted robberyin the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the first degree (Penal Law § 140.30 [4]), attemptedrobbery in the first degree (§§ 110.00, 160.15 [4]) and attemptedrobbery in the second degree (§§ 110.00, 160.10 [1]). Contrary todefendant's contention, County Court properly refused to suppress a witness's in-courtidentification of him. It is well settled that "even when an identification is the product ofa suggestive pretrial identification procedure, a witness will nonetheless be permitted toidentify a defendant in court if that identification is based upon an independent source"(People v Campbell, 200 AD2d 624, 625 [1994], lv denied 83 NY2d 869[1994]; see People vWilson, 43 AD3d 1409, 1410 [2007], lv denied 9 NY3d 994 [2007]).Here, after conducting a hearing and reviewing the appropriate factors (see Neil vBiggers, 409 US 188, 199-200 [1972]; People v Lopez, 85 AD3d 1641, 1641 [2011], lvdenied 17 NY3d 860 [2011]), the court properly concluded that the Peopleestablished by clear and convincing evidence that the victim's observations of defendantduring the commission of the crime provided an independent basis for the in-courtidentification (see People vYoung, 20 AD3d 893, 893-894 [2005], affd 7 NY3d 40 [2006]; People v Small, 110 AD3d1106, 1106-1107 [2013], lv denied 22 NY3d 1043 [2013]; People v Jordan, 96 AD3d640, 640 [2012], lv denied 19 NY3d 1027 [2012]).
Defendant further contends that the police lieutenant who stopped him lackedprobable cause to arrest him or reasonable suspicion to detain him, and that the courttherefore erred in refusing to suppress all evidence flowing from that detention. Wereject that contention. It is well settled that a police officer has reasonable suspicion todetain a suspect and transport him or her to the scene of a crime where the stop occursclose in time and location to the crime (see People v Brisco, 99 NY2d 596, 600[2003]; People v Hicks, 68 NY2d 234, 239-240 [1986]). Here, the evidence atthe hearing establishes that the lieutenant saw defendant running across a street threeblocks from the scene of the crime, in the same direction in which the broadcast indicatedthat the suspects were fleeing. The lieutenant testified that, at the time when she first sawdefendant running, the broadcast indicated that a crime was in progress, and defendant'sdescription, i.e., a black male wearing blue jeans, was consistent with the broadcastdescription of the suspects. Contrary to defendant's contention, the slight variancebetween the T-shirt he was wearing at the time of the stop and the hooded sweatshirt that,according to the broadcast, the suspect was wearing does not require suppressioninasmuch as the stop was in temporal and spatial proximity to the broadcast and themajority of the identifying factors were present (see People v Richardson, 70 AD3d 1327, 1328 [2010],lv denied 15 NY3d 756 [2010]; see also People v Balkum, 71 AD3d 1594, 1595-1596[2010], lv denied 14 NY3d 885 [2010]). Furthermore, the lieutenant was awarethat the suspects had been running through back yards in an attempt to escape from thepursuing officers [*2]and civilians, and it is notremarkable that a fleeing suspect would discard his outer clothing in an attempt to avoidpursuit (see e.g. People v Foster, 85 NY2d 1012, 1013 [1995]; People ex rel.Gonzalez v Warden of Anna M. Cross Ctr., 79 NY2d 892, 894 [1992]; People vMcCullin, 248 AD2d 277, 277-278 [1998], lv denied 92 NY2d 928 [1998]).Finally, the lieutenant "had probable cause to arrest defendant after the victim identifiedhim during the showup identification procedure" (People v Dumbleton, 67 AD3d 1451, 1452 [2009], lvdenied 14 NY3d 770 [2010]; see People v Samuels, 113 AD3d 1117, 1118 [2014], lvdenied 24 NY3d 964 [2014]; People v Jackson, 78 AD3d 1685, 1686 [2010], lvdenied 16 NY3d 743 [2011]).
Defendant also contends that his conviction is not supported by legally sufficientevidence because the evidence fails to establish that he was one of the perpetrators of thecrimes. Viewing the evidence in the light most favorable to the People (see People vWilliams, 84 NY2d 925, 926 [1994]), we conclude that it is legally sufficient toestablish defendant's identity, and thus to support the conviction of the crimes charged(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). Althoughdefendant contends that the victims and the codefendant who testified against him werenot credible, we note that "[r]esolution of issues of credibility, as well as the weight to beaccorded to the evidence presented, are primarily questions to be determined by the jury"(People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]), and we see no reason to disturb the jury's resolution of those issues.
Defendant further contends that he was deprived of due process by prosecutorialmisconduct during summation. Defendant objected to six instances of allegedmisconduct during the prosecutor's summation, and the court sustained those objections.The court also gave curative instructions on two occasions. Defendant raises issues onappeal with respect to, inter alia, five of those alleged instances of misconduct to whichhe objected. "Following the Trial Judge's curative instructions, defense counsel neitherobjected further, nor requested a mistrial. Under these circumstances, the curativeinstructions must be deemed to have corrected the error[s] to the defendant's satisfaction"(People v Heide, 84 NY2d 943, 944 [1994]; see People v Medina, 53NY2d 951, 953 [1981]; Peoplev Wallace, 59 AD3d 1069, 1071 [2009], lv denied 12 NY3d 861[2009]). Defendant did not object to the remaining instances of alleged misconductduring summation that he now challenges on appeal, and thus failed to preserve hiscurrent contentions for our review (see People v James, 114 AD3d 1202, 1206-1207 [2014],lv denied 22 NY3d 1199 [2014]; People v Rumph, 93 AD3d 1346, 1347 [2012], lvdenied 19 NY3d 967 [2012]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Contrary to defendant's further contention, the court properly denied his motionpursuant to CPL 330.30 (2) to set aside the verdict based on alleged juror misconduct.Pursuant to that statute, the court is authorized to set aside a verdict if, "during the trialthere occurred, out of the presence of the court, improper conduct by a juror, or improperconduct by another person in relation to a juror, which may have affected a substantialright of the defendant and which was not known to the defendant prior to the rendition ofthe verdict" (id.). At a hearing on such a motion, "the defendant has the burden ofproving by a preponderance of the evidence every fact essential to support the motion"(CPL 330.40 [2] [g]). Here, defendant failed to establish that there was improper conductby the juror at issue inasmuch as he failed to establish by a preponderance of theevidence that the juror knew before or during the trial that one of defendant's trialattorneys represented the opposing party in the juror's Family Court proceeding.Defendant thus failed to demonstrate that there was misconduct by a juror that "may haveaffected a substantial right of the defendant" (CPL 330.30 [2]; see People vRichardson, 185 AD2d 1001, 1002 [1992], lv denied 80 NY2d 976 [1992];cf. People v Brown, 48 NY2d 388, 393-394 [1979]).
The sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,Valentino, Whalen and DeJoseph, JJ.