| People v Granger |
| 2014 NY Slip Op 08349 [122 AD3d 940] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Elie Granger, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M.Castellano, Johnnette Traill, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered August 9, 2011, convicting him of assault in the first degree andendangering the welfare of a child, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial (Buchter, J.), after a hearing, of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the testimony of the arresting officer at the pretrialsuppression hearing was incredible and patently tailored to overcome constitutionalobjections is unpreserved for appellate review (see CPL 470.05 [2]; People v Taylor, 120 AD3d519, 520 [2014]). In any event, while the defendant correctly observes that therewere inconsistencies in that officer's testimony, these inconsistencies did not rise to thelevel of rendering his testimony incredible as a matter of law or demonstrate that it was afabrication patently tailored to meet constitutional objections (see Matter of Stephen O., 47AD3d 719, 719 [2008]; People v Gamble, 267 AD2d 400 [1999]).Moreover, upon the exercise of our factual review power (see Matter of Robert D., 69AD3d 714, 716-717 [2010]), we conclude that the inconsistencies in the testimonypresented a credibility question for the hearing court, which determination is entitled togreat deference on appeal (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Bennett, 57 AD3d912 [2008]), and we discern no basis on this record to disturb that determination.Moreover, contrary to the defendant's further contention, his arrest in the hallway of asingle room residence hotel did not violate his rights under Payton v New York(445 US 573 [1980]; see Peoplev Reynoso, 2 NY3d 820, 821 [2004]; People v Minley, 68 NY2d 952,953 [1986]; People vSancho-Hernandez, 106 AD3d 841, 841 [2013]; People v Cameron, 74 AD3d1223, 1224 [2010]; Peoplev Allen, 54 AD3d 868, 868-869 [2008]). Accordingly, the hearing courtproperly denied that branch of the defendant's omnibus motion which was to suppressphysical evidence as the fruit of an illegal arrest.
The trial court did not improvidently exercise its discretion in denying thedefendant's application to present an expert witness as to the reliability of identificationtestimony. Where a case "turns on the accuracy of eyewitness identifications and there islittle or no corroborating evidence connecting the defendant to the crime, it is an abuse ofdiscretion for a trial court to exclude expert [*2]testimonyon the reliability of eyewitness identifications if that testimony is (1) relevant to thewitness's identification of defendant, (2) based on principles that are generally acceptedwithin the relevant scientific community, (3) proffered by a qualified expert and (4) on atopic beyond the ken of the average juror" (People v LeGrand, 8 NY3d 449, 452 [2007]; see People v Santiago, 17NY3d 661, 669 [2011]; People v Rhodes, 115 AD3d 681, 682 [2014]). Here,however, there was sufficient corroborating evidence connecting the defendant to thecrimes to obviate the need for expert testimony, including surveillance videos, physicalevidence placing the defendant in the vicinity of the crime shortly after the crimeoccurred, and evidence probative of the defendant's identity as the perpetrator in this caseadmitted pursuant to People v Molineux (168 NY 264 [1901]), demonstratingthat the defendant had committed crimes in the past by using a distinctive and uniquemodus operandi that was nearly identical to the manner in which the crime wascommitted in this case (seePeople v Abney, 13 NY3d 251, 269 [2009]; People v Young, 7 NY3d 40, 46 [2006]; People vLee, 96 NY2d 157, 163 [2001]; People v Rhodes, 115 AD3d 681, 682 [2014]; People v Rodriguez, 98 AD3d530, 532 [2012]).
The defendant's claim, made in his pro se supplemental brief, that he was deprived ofhis constitutional right to the effective assistance of counsel is based, in part, on matterappearing on the record and, in part, on matter outside the record and, thus, constitutes a"mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011] [internalquotation marks and brackets omitted]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). In thiscase, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (see People v McBride, 103 AD3d 920, 921 [2013]; People v Ropiza, 100 AD3d935, 936 [2012]). Since the defendant's claim of ineffective assistance of counselcannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]).
The defendant's remaining contentions, raised in his pro se supplemental brief, arewithout merit. Mastro, J.P., Balkin, Miller and Duffy, JJ., concur.