| People v Yi Qiu |
| 2015 NY Slip Op 05508 [129 AD3d 1111] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Yi Qiu, Appellant. |
Steven Z. Legon, New York, N.Y., for appellant.
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 (DelGiudice, 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 vJin Zheng, 127 AD3d 890 [2015]; see also People v Howard, 22 NY3d 388, 402 [2013]; People v Gonzalez, 57 AD3d560, 561 [2008]). The defendant's contention that the trial testimony of a femalewitness established that the showup identification was impermissibly suggestive isunpreserved for appellate review, since the defendant never moved to reopen thesuppression hearing (see People v Jin Zheng, 127 AD3d at 890; 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 establish the defendant's guilt of assaultin the 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 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt of thatcrime was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
[*2] The defendant's contention that the Supreme Courterred when it admitted into evidence the statements made by two of his codefendantswhile they were being searched by the police is unpreserved for appellate review (seePeople v Jin Zheng, 127 AD3d at 890; People v Jenkins, 93 AD3d 861 [2012]). In any event,while the statements should not have been admitted under the coconspirator exception tothe hearsay rule (see People vCaban, 5 NY3d 143, 148 [2005]), the error was harmless, as there wasoverwhelming evidence of the defendant's guilt and no significant probability that, butfor the admission of the statements, the defendant would have been acquitted (seePeople v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant's contention that the trial court displayed bias in its treatment of thedefense is unpreserved for appellate review (see CPL 470.05 [2]; People v Prado, 4 NY3d725, 726 [2004]; People vBedell, 84 AD3d 1733 [2011]; People v White, 81 AD3d 1039, 1039 [2011]). In anyevent, there is nothing in the record to support the defendant's claim of bias (see People v Rodriguez, 111AD3d 856, 859 [2013]; People v Argentieri, 66 AD3d 558, 559 [2009]; People v Casey, 61 AD3d1011, 1014 [2009]; People v Love, 307 AD2d 528, 532 [2003]; People vMaxam, 301 AD2d 791, 793 [2003]).
Viewing the record as a whole, the defendant was afforded meaningfulrepresentation and, thus, was not deprived of the effective assistance of counsel (seeStrickland v Washington, 466 US 668 [1984]; People v Benevento, 91 NY2d708 [1998]; People v Baldi, 54 NY2d 137 [1981]; People v Fields, 127 AD3d782 [2015]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Balkin, J.P., Hall, Austin and Sgroi, JJ., concur.