| People v Jin Zheng |
| 2015 NY Slip Op 02993 [127 AD3d 890] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jin Zheng, Appellant. |
Joyce C. London, P.C., New York, N.Y. (Michael A. Young of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGuidice, J.), rendered September 18, 2012, convicting him of assault in the first degree,gang assault in the first degree, and assault in the second degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the showup identification procedure wasconducted in close geographic and temporal proximity to the crime, and it was notunduly suggestive (see People vHoward, 22 NY3d 388, 402 [2013]; People v Gonzalez, 57 AD3d 560, 561 [2008]). Thedefendant's contention that the trial testimony of a female witness established that theshowup identification was impermissibly suggestive is unpreserved for appellate review,since the defendant never moved to reopen the suppression hearing (see People v Scott, 85 AD3d827 [2011]). In any event, the defendant's contention is without merit.
The defendant's contention that the evidence was legally insufficient to support hisconviction of assault in the first degree is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to prove the defendant's guilt of assault inthe first degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342, 348 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we find that the verdict of guilt of that crimewas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court erred when it admitted into [*2]evidence the statements made by two of his codefendantswhile they were being searched by the police is unpreserved for appellate review (see People v Jenkins, 93 AD3d861 [2012]). In any event, while the statements should not have been admitted underthe coconspirator exception to the hearsay rule (see People v Caban, 5 NY3d 143, 148 [2005]), the errorwas harmless (see People v Crimmins, 36 NY2d 230, 237 [1975]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]), and there is no evidence in the record to support the defendant's contention thatthe Supreme Court exhibited bias that affected the sentence imposed.
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.