| People v Thompson |
| 2015 NY Slip Op 07375 [132 AD3d 1364] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert Thompson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered July 18, 2012. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree and criminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence of imprisonment toa term of 15 years and as modified the judgment is affirmed in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the first degree (Penal Law § 160.15 [3]) and criminalpossession of a weapon in the fourth degree (§ 265.01 [1]), in connectionwith the knife-point robbery of an 81-year-old woman. County Court conducted a jointMapp/Wade/Huntley hearing, following which the court properly refused tosuppress the knife recovered from defendant, the statement he made to the police that hehad a knife in his pocket, and the showup identification. The evidence at the suppressionhearing established that the police had reasonable suspicion to stop defendant (see People v Mitchell, 118AD3d 1417, 1417-1418 [2014], lv denied 24 NY3d 963 [2014]; seegenerally People v De Bour, 40 NY2d 210, 223 [1976]). Within minutes before thereported robbery, a police witness had observed defendant, whom he knew, followingclosely behind an elderly woman at the location of the reported robbery. The descriptionof the robbery suspect matched that of defendant, and he was apprehended shortlythereafter while running from the scene. Thus, contrary to defendant's contention, thepolice had a reasonable suspicion that he had committed a felony and, based upon thedispatched report, the officer was authorized to frisk defendant for officer safety and toseize the knife (see People vWilliams, 67 AD3d 1050, 1052 [2009], lv denied 13 NY3d 942[2010]; People v Wallace,41 AD3d 1223, 1224 [2007], lv denied 9 NY3d 883 [2007]). Furthermore,defendant's statement that he had a knife was not in response to any question by thepolice, and thus the court properly refused to suppress that spontaneous statement (see People v Roseboro, 124AD3d 1374, 1375 [2015]).
Contrary to defendant's further contention, the showup identification procedure wasreasonable inasmuch as it occurred approximately 15 minutes after the crime andapproximately two blocks away from the crime scene during a continuous, ongoinginvestigation (see People vWilliams, 118 AD3d 1478, 1479 [2014], lv denied 24 NY3d 1090[2015]). Contrary to defendant's contention, the fact that he was handcuffed and standingnext to a police officer during the showup identification procedure does not render theprocedure unduly suggestive as a matter of law (see People v Delarosa, 28 AD3d 1186, 1187 [2006], lvdenied 7 NY3d 811 [2006]). Following the identification by the victim, the policehad probable cause to arrest defendant (see People v Dumbleton, 67 AD3d 1451, 1452 [2009],lv denied 14 NY3d 770 [2010]).
Defendant concedes that he failed to preserve for our review his contention that the911 call constituted improper bolstering of the victim's testimony and thus should nothave been admitted in evidence. In any event, that contention is without merit. Where, ashere, a 911 call [*2]fits within an exception to the hearsayrule, i.e., as an excited utterance, its admission is proper "notwithstanding thecharacterization as a prior consistent statement" (People v Buie, 86 NY2d 501,511 [1995]; see People vSpicola, 16 NY3d 441, 452 [2011], cert denied 565 US &mdash, 132 SCt 400 [2011]). We reject defendant's contention that the evidence was more prejudicialthan probative. Although the victim cried during much of the call, the probative value ofher accurate description of defendant and the account of the events outweighed anyprejudicial effect arising from her emotional state (see People v Morris, 21 NY3d 588, 597 [2013]; People v Carrenard, 56 AD3d486, 487 [2008], lv denied 12 NY3d 781 [2009]).
We reject defendant's contention that the court abused its discretion in permitting apolice witness to testify that he knew defendant inasmuch as the testimony was relevantto the central issue in the case, i.e., identity, and any prejudicial effect did not outweighthe probative value (see Peoplev McCullough, 117 AD3d 1415, 1416 [2014], lv denied 23 NY3d 1040[2014]; see generally People v Primo, 96 NY2d 351, 355-356 [2001]). Wefurther conclude that the court did not abuse its discretion in denying defendant's motionfor a mistrial on the ground that a police evidence technician's testimony referenced anitem retrieved from defendant, in violation of a prior court order. The court properlyassessed the impact of the testimony upon the jury, and there is no basis upon which todisturb the court's denial of the motion (see People v Abston, 229 AD2d 970, 971[1996], lv denied 88 NY2d 1066 [1996]), particularly where, as here, the courthad issued a curative instruction with respect to that testimony (see People v Roman, 17 AD3d1166, 1166-1167 [2005], lv denied 5 NY3d 768 [2005]).
We also reject defendant's contention that the police witnesses improperly bolsteredthe testimony of the victim regarding the out-of-court identification of defendant. Neitherofficer testified that the victim identified defendant during the showup identificationprocedure (cf. People vSmalls, 100 AD3d 1428, 1429 [2012], lv denied 21 NY3d 1010 [2013]),and we conclude that their testimony did not implicitly bolster the victim's testimony, butinstead completed the narrative of events leading to defendant's arrest (see People v Mulligan, 118AD3d 1372, 1374 [2014], lv denied 25 NY3d 1075 [2015]).
Contrary to defendant's contention, viewing the evidence in light of the elements ofthe crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). The evidence established that apolice officer who knew defendant observed him walking closely behind an elderlywoman at approximately 8:00 a.m. and that, minutes later, the officer received a report ofa robbery of an elderly woman at that location by a man fitting defendant's description.The victim testified in detail regarding the events, which coincided with the report shemade to a 911 operator immediately thereafter. A knife fitting the description given bythe victim was recovered from defendant, who was seen running from the scene by thepolice, and the victim identified defendant within 15 minutes of the crime. The jury wasentitled to credit the testimony of the People's witnesses (see People v Baker, 30 AD3d1102, 1102-1103 [2006], lv denied 7 NY3d 846 [2006]), and we concludethat a different verdict would have been unreasonable (see generally Bleakley, 69NY2d at 495).
We reject defendant's contention that the court, in sentencing him, punished him forexercising his right to a trial. " '[T]here is no indication in the record before usthat the sentencing court acted in a vindictive manner based on defendant's exercise ofthe right to trial' " (People v Stubinger, 87 AD3d 1316, 1317 [2011], lvdenied 18 NY3d 862 [2011]). We agree with defendant, however, that the sentenceis unduly harsh and severe insofar as the court imposed a term of imprisonment of 25years. Defendant has no prior felony convictions, and none of the misdemeanorconvictions was a violent offense. Furthermore, defendant has a history of mental illness.We therefore modify the judgment as a matter of discretion in the interest of justice byreducing the sentence of imprisonment to a term of 15 years (see CPL 470.15 [6][b]), to be followed by the five years of postrelease supervision imposed by the court.Present—Scudder, P.J., Smith, Lindley, Valentino and Whalen, JJ.