| People v Ainsley |
| 2015 NY Slip Op 07853 [132 AD3d 1007] |
| October 28, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Denan Ainsley, Appellant. |
Barry Krinsky, Brooklyn, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AnnBordley, and Jean M. Joyce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGuidice, J.), rendered January 8, 2014, convicting him of attempted murder in the seconddegree and criminal possession of a weapon in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
The defendant was convicted of attempted murder in the second degree and criminalpossession of a weapon in the second degree in connection with a shooting outside of anightclub in Brooklyn. On the date of the shooting, the defendant and an unidentifiedaccomplice exchanged words with the complainant in the nightclub. The defendant andhis accomplice then followed the complainant and his friend out of the nightclub and analtercation ensued. While the accomplice held the complainant, the defendant pulled outa gun and shot the complainant at close range. During the altercation, which wascaptured in its entirety on video by the nightclub's security camera, the defendant's hatfell off and was later recovered by the police. The defendant's DNA matched the DNAfound on the hat.
On appeal, the defendant challenges, inter alia, the hearing court's determination thatthe police had probable cause to arrest him and that the lineup was not undulysuggestive. Contrary to the defendant's contention, the hearing court properly determinedthat there was probable cause for his arrest and, accordingly, properly denied that branchof his omnibus motion which was to suppress the lineup identification evidence as theproduct of an illegal arrest (seePeople v Campbell, 120 AD3d 827, 828 [2014]; People v Capela, 97 AD3d760, 761 [2012]). The hearing court also properly denied that branch of thedefendant's omnibus motion which was to suppress the lineup identification evidence,made on the ground that the lineup was unduly suggestive. While lineup participantsshould have the same general physical characteristics as those of the suspect, there is norequirement that a defendant in a lineup be surrounded by individuals nearly identical inappearance (see People vMoore, 118 AD3d 916, 918 [2014]; People v Starks, 91 AD3d 975, 975-976 [2012]). Here, thephotographs taken of the lineup reflect that the fillers sufficiently resembled thedefendant such that the lineup was not unduly suggestive (see People v Moore,118 AD3d at 918; People v Starks, 91 AD3d at [*2]976).
Although the trial court erred when it precluded the defendant from calling a witnesswho would have testified that the complainant exchanged angry words with anotherpatron in the nightclub prior to the shooting and about when the defendant left thenightclub in relation to when the complainant departed (see People v Gilmore, 66NY2d 863, 866-867 [1985]; seealso People v Green, 70 AD3d 39, 44 [2009]; People v Collins, 30 AD3d1079, 1079 [2006]), the error was harmless. The evidence of the defendant's guiltincluded, among other things, the eyewitness testimony of the complainant and his friendidentifying the defendant as the shooter, first to the police by providing the police with apicture of the defendant which led to the defendant's arrest, and later, by the complainant,at a lineup and, thereafter, by both the complainant and his friend at trial; the video fromthe nightclub's security camera that captured the entire altercation; and the DNA on thehat that fell off the shooter and was left behind at the crime scene which matched thedefendant's DNA. The evidence of the defendant's guilt was overwhelming (seePeople v Gilmore, 66 NY2d at 867; see also People v Bennett, 128 AD2d540, 540 [1987]), and there is no reasonable possibility that the error in precluding theproffered witness might have contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 237 [1975]).
The trial court also should have allowed into evidence a police report offered by thedefendant, in which a detective recorded the complainant's statements when he viewed aphoto array. The defendant alleges that the report contains the complainant's descriptionof the shooter, which was inconsistent with the complainant's testimony at trial (see People v Mullings, 83AD3d 871, 871-872 [2011]; People v Steward, 54 AD3d 880, 882 [2008]; People vMoore, 193 AD2d 627, 628 [1993]; People v Jackson, 40 AD2d 1006, 1007[1972]). However, for the reasons noted above, the failure to admit this evidence alsowas harmless error (see People v Crimmins, 36 NY2d at 237).
Contrary to the defendant's contentions, the cumulative effect of the court's errors didnot deprive him of a fair trial (see People v Crimmins, 36 NY2d at 237-238). Thedefendant was also not deprived of a fair trial by the trial court's jury charge with respectto intent. The language used by the trial court was substantially similar to languagerecommended by the Committee on Criminal Jury Instructions, and the court's charge,read as a whole, made clear that it was the jury's role to determine the defendant's intent,and that the People bore the burden of proving, beyond a reasonable doubt, that thedefendant acted intentionally (see People v Torres, 46 AD3d 925, 925-926 [2007]; seealso People v Green, 50 NY2d 891, 893 [1980]). Moreover, the charge on intentappropriately referred to the facts of the case to explain the application of the law to thefacts (see CPL 300.10 [2]; People v Culhane, 45 NY2d 757, 758[1978]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,86-87 [1982]).
The defendant's remaining contentions are either unpreserved for appellate review orwithout merit. Dillon, J.P., Miller, Duffy and LaSalle, JJ., concur.