| People v Fabers |
| 2015 NY Slip Op 07991 [133 AD3d 616] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lamel Fabers, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Paul Wiener of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Daniel Berman of counsel; Michael C. Zebrowski on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered November 10, 2011, convicting him of murder in the seconddegree and criminal possession of a weapon in the second degree, upon a jury verdict,and sentencing him to an indeterminate term of imprisonment of 22 years to life on theconviction of murder in the second degree and a determinate term of imprisonment of 13years on the conviction of criminal possession of a weapon in the second degree, to runconsecutively to each other, plus a period of five years of postrelease supervision. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed on the conviction of criminal possession of aweapon in the second degree from a determinate term of 13 years of imprisonment to adeterminate term of five years of imprisonment; as so modified, the judgment isaffirmed.
Contrary to the defendant's contention, the Supreme Court properly declined tosuppress identification testimony. Although lineup participants should share the samegeneral physical characteristics, there is no requirement that a defendant in a lineup besurrounded by persons who are nearly identical in appearance (see People v Marshall, 51AD3d 821 [2008]; People vKirby, 34 AD3d 695 [2006]). Here, the hearing record, including a photographof the corporeal lineup, establishes that the lineup procedure was not unduly suggestive(see People v McDonald, 82AD3d 1125 [2011]; People v Marshall, 51 AD3d at 821; People v Jordan, 44 AD3d875, 876 [2007]; People vJohnson, 33 AD3d 939, 940 [2006]; People v Saunders, 306 AD2d 502[2003]).
The defendant's contention that the Supreme Court failed to comply with theprocedure for handling jury notes set forth by the Court of Appeals in People vO'Rama (78 NY2d 270, 277-278 [1991]) is unpreserved for appellate review. Thealleged failure to comply with the O'Rama procedure did not constitute a mode ofproceedings error which would obviate the preservation [*2]requirement because it is evident from the record that theSupreme Court fulfilled its core responsibilities under CPL 310.30 by providing defensecounsel with meaningful notice of the content of the jury's notes (see People vNealon, 26 NY3d 152 [2015]; People v Ramirez, 15 NY3d824, 826 [2010]; People vKadarko, 14 NY3d 426, 429-430 [2010]; People v Heron, 130 AD3d 754, 756 [2015]; People v Pressley, 115 AD3d991, 992 [2014]).
Contrary to the defendant's contention raised in his pro se supplemental brief, theSupreme Court did not err in denying his trial motion to reopen the suppression hearing.The defendant failed to show that the new facts he proffered in support of the motionwere likely to affect the original determination (see CPL 710.40 [4]; People vClark, 88 NY2d 552, 555 [1996]; People v Guerrier, 129 AD3d 863 [2015]; People v Perkins, 124 AD3d915 [2015]).
In his pro se supplemental brief, the defendant contends that the verdict was againstthe weight of the evidence. In fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict was not against the weight ofthe evidence (see People vRomero, 7 NY3d 633 [2006]).
Although the defendant contends in his pro se supplemental brief that counsel shouldhave sought a circumstantial evidence charge, such a charge would not have beenwarranted here (see People v Rodriguez, 259 AD2d 713 [1999]; People vWilliams, 213 AD2d 688, 688-689 [1995]). Consequently, the failure of trial counselto seek that jury charge cannot be said to have constituted ineffective assistance ofcounsel (see People vCaban, 5 NY3d 143, 152 [2005]; People v McDonald, 82 AD3d 1125, 1126 [2011]).
The Supreme Court properly imposed consecutive sentences for the convictions ofmurder in the second degree and criminal possession of a weapon in the second degree inlight of, inter alia, the evidence at trial showing that prior to the shooting incident thedefendant possessed the weapon that he ultimately used (see People v Brown, 21 NY3d739, 751-752 [2013];People v Mitchell, 118 AD3d 1417, 1418-1419 [2014]; People v Rodriguez, 118 AD3d451, 452 [2014]).
The sentence imposed upon the conviction of criminal possession of a weapon in thesecond degree was excessive to the extent indicated herein (see People v Suitte,90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Balkin,Dickerson and Roman, JJ., concur.