| People v Bateman |
| 2015 NY Slip Op 00402 [124 AD3d 983] |
| January 15, 2015 |
| Appellate Division, Third Department |
[*1](January 15, 2015)
| The People of the State of New York, Respondent, vGary F. Bateman, Appellant. |
Abbie Goldbas, Utica, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Broome County(Cawley, J.), rendered April 29, 2011, upon a verdict convicting defendant of the crimesof robbery in the second degree and robbery in the third degree.
The victim was accosted from behind as she left a bar in the City of Binghamton,Broome County in the early morning hours of March 29, 2009. The perpetrator beganchoking and striking her, knocking her to the ground. He continued to assault her untilshe told him to take her money, at which point he took her wallet and fled. Severalcollege students who were in the vicinity when the attack was in progress witnessed it,and then two of them—Yashodhan Chivate and Justin Flechsig—pursuedthe perpetrator on foot; while following him, they enlisted the help of other collegestudents, including Michael Coritsidis and Alexander Douris. The pursuers caught andconfronted the perpetrator, who denied involvement and then ran down the alley. Thepursuers gave chase, but stopped when confronted by another individual in the alley.
Shortly thereafter, responding to a 911 call and description given of the allegedperpetrator, police detained defendant for separate showup identifications. The victim,who had not seen her attacker's face, identified defendant's clothing and body shape asconsistent with her attacker, and several of the pursuers identified defendant as theperson they had confronted following the attack. Defendant was indicted on charges ofrobbery in the second degree and robbery in the third degree. Following a jury trial, hewas convicted of both counts and sentenced, as a persistent violent felony offender, toconcurrent prison terms of 25 years to life. [*2]Defendantappeals.
Defendant argues that the showup procedures were unduly suggestive and that thein-court identifications should have been suppressed. Following a Wade hearing,County Court found that the procedures were not unduly suggestive as to theidentifications by the victim and Chivate. Although the court determined that the showupprocedure was defective as to Coritsidis and Douris, since they and another individualhad traveled together to the showup and admittedly discussed the perpetrator, the courtfound an adequate independent basis to permit an in-court identification. "A showupidentification is permissible so long as it was 'reasonable under thecircumstances—that is, when conducted in close geographic and temporalproximity to the crime—and the procedure used was not undulysuggestive' " (People vToye, 107 AD3d 1149, 1150 [2013], lv denied 22 NY3d 1091 [2014],quoting People v Wicks, 73AD3d 1233, 1235 [2010], lv denied 15 NY3d 857 [2010]). If an improperprocedure is used, an in-court identification is not necessarily precluded "so long as thereis clear and convincing evidence that the in-court identification derives from anindependent basis which preceded the unlawful procedure" (People v Albert J.,138 AD2d 773, 774 [1988]; see People v Stacey, 173 AD2d 960, 961 [1991],lv denied 79 NY2d 832 [1991]).
Evidence at the Wade hearing supported County Court's determination thatthe showup was not defective as to the victim and Chivate. Based upon the physical buildand clothing description given to police, defendant was stopped by police shortly afterand within a few blocks of the attack. He was out of breath and appeared nervous.Defendant was not placed in handcuffs. The officer detained him for about five minutesuntil the victim arrived. The victim identified him as wearing clothing like her attacker,his jacket appeared to have been turned inside out since the attack, and his physical buildwas the same as the attacker. Arriving separately, Chivate positively identified defendant.These identifications were made close to the scene within less than 30 minutes and nototherwise infected by unduly suggestive procedures (see People v Bellamy, 118 AD3d 1113, 1116 [2014]).
With regard to Coritsidis and Douris, their close face-to-face conversation withdefendant when they assisted in initially stopping him immediately after the assaultprovided sufficient proof to support County Court's determination that there was anindependent basis for their in-court identification (see People v Albert J., 138AD2d at 774-775). Coritsidis indicated that he was within two feet of defendant, facinghim during a confrontation that lasted about a minute. Douris, who did not make anin-court identification at trial, was similarly close and recalled even making physicalcontact with defendant during the confrontation.
Defendant contends that County Court's Sandoval ruling constitutedreversible error. "In such a ruling, the trial court has discretion and may choose fromseveral options when weighing the prejudice to a defendant's right to a fair trial againstthe People's right to impeach a testifying defendant's credibility based on his or her priorconvictions" (People vYoung, 115 AD3d 1013, 1014 [2014] [citation omitted]; see People v Smith, 18 NY3d588, 593 [2012]). Here, in the event that defendant testified, the People sought toinquire about his 1996 conviction for grand larceny in the fourth degree and his 1981convictions for robbery in the first degree and rape in the first degree. After weighing theprobative value against the potential prejudice, County Court determined that the Peoplecould, as to each, elicit that he was convicted of a felony level offense, but could notmention the title of the crime, the sentence or the underlying facts. The court noted as toits ruling regarding the 1981 convictions that defendant had spent a substantial portion ofthe time thereafter in prison (seePeople v Wright, 38 AD3d 1004, 1005-1006 [2007], lv denied 9 NY3d853 [2007]) and further found that defendant's conduct demonstrated his willingness toplace his interests above that of society (see People v Malak, 117 [*3]AD3d 1170, 1174-1175 [2014]). Given the restrictionsplaced on the use of the earlier convictions, we are unpersuaded that County Courtabused its discretion with regard to its Sandoval ruling (see People v Wilson, 78 AD3d1213, 1216 [2010], lv denied 16 NY3d 747 [2011]; People v Teen,200 AD2d 785, 786 [1994], lv denied 83 NY2d 859 [1994]).
The verdict was not against the weight of the evidence. Several witnesses to thepertinent events provided sufficient testimony to identify defendant as the individual whoattacked the victim and took her wallet. The victim testified regarding the injuries shesustained in the attack. Although cross-examination revealed inconsistencies by some ofthe witnesses, those inconsistencies were not so severe as to render the testimonyunbelievable, but gave rise to credibility issues for the jury (see People v Davis, 83 AD3d1210, 1211 [2011], lv denied 17 NY3d 794 [2011]). After viewing theevidence in the record in a neutral light and according deference to the jury's credibilitydeterminations, the jury's verdict is not contrary to the weight of the evidence (see People v Anderson, 118AD3d 1138, 1142 [2014]; People v Jones, 111 AD3d 1148, 1150 [2013], lvdenied 23 NY3d 1063 [2014]).
Lastly, defendant asserts that he did not receive the effective assistance of counsel."So long as the evidence, the law, and the circumstances of a particular case, viewed intotality and as of the time of the representation, reveal that the attorney providedmeaningful representation, the constitutional requirement will have been met"(People v Baldi, 54 NY2d 137, 147 [1981] [citations omitted]; accord People v Oathout, 21NY3d 127, 128 [2013]). Review of the record reflects that counsel made appropriatepretrial motions, articulated a logical defense theory at trial, raised relevant objections,effectively cross-examined the People's witnesses and otherwise zealously representeddefendant (see e.g. People vFord, 110 AD3d 1368, 1370 [2013], lv denied 24 NY3d 1043 [2014];People v Miller, 93 AD3d882, 885 [2012], lv denied 19 NY3d 975 [2012]). The purported defects inrepresentation urged by defendant are, at best, second-guessing with the clarity ofhindsight, which does not constitute ineffective assistance (see People vBenevento, 91 NY2d 708, 712 [1998]).
Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.