| People v Brown |
| 2014 NY Slip Op 08853 [123 AD3d 938] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Zavion Brown, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andSolomon Neubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered July 17, 2012, convicting him of robbery in the first degree androbbery in the second degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant's challenge to the legal sufficiencyof the evidence based on the People's failure to establish the defendant's identity beyonda reasonable doubt is preserved for appellate review (see People v Finch, 23 NY3d 408 [2014]). However,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 identity as one of the perpetrators beyond a reasonable doubt. Moreover,upon the exercise of our factual review power (see CPL 470.15 [5]), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
"The credibility determinations of a hearing court following a suppression hearingare accorded great deference on appeal, and will not be disturbed unless clearlyunsupported by the record" (People v Hobson, 111 AD3d 958, 959 [2013]; seePeople v Prochilo, 41 NY2d 759, 761 [1977]). Here, upon according deference tothe hearing court's findings of credibility, we conclude that the record supports the court'sdetermination that the station-house identification at issue was accidental and not theresult of police misconduct or questionable police procedures (see People v Rodriguez, 98AD3d 530, 531-532 [2012]; People v Gomez, 60 AD3d 782, 783 [2009]; People vNunez, 216 AD2d 494, 495 [1995]). Thus, the court did not err in denyingsuppression.
Contrary to the defendant's contention, the court did in fact reopen a Wadehearing (see United States v Wade, 388 US 218 [1967]), and thereafter madeits determination based upon a record that included the proceedings conducted after theWade hearing was reopened. Moreover, the defendant did not establish thatdefense counsel was ineffective for failing to call any witness at the [*2]reopened hearing, as he has not shown the absence ofstrategic or other legitimate explanations for the alleged failure (see People v Barboni, 21NY3d 393, 405-406 [2013]).
The defendant's contention that the trial court discharged potential jurors based uponhardship without conducting a sufficient inquiry is unpreserved for appellate review (see People v Johnson, 116AD3d 883 [2014]; People vHarris, 115 AD3d 761, 762 [2014]; People v King, 110 AD3d 1005, 1006 [2013], lvgranted 23 NY3d 1022 [2014]; People v Casanova, 62 AD3d 88, 90-92 [2009]) and, in anyevent, is without merit (seePeople v Johnson, 116 AD3d 883 [2014]; People v Harris, 115 AD3d at762; People v King, 110 AD3d at 1006).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Chambers, J.P., Miller, Duffy and LaSalle, JJ., concur.