| People v Ford |
| 2015 NY Slip Op 08091 [133 AD3d 442] |
| November 10, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jerome Ford, Jr., Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (RosemaryHerbert of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), renderedDecember 21, 2009, convicting defendant, after a jury trial, of murder in the seconddegree and two counts of criminal possession of a weapon in the second degree, andsentencing him, as a second felony offender, to an aggregate term of 25 years to life,unanimously affirmed.
The court properly exercised its discretion in admitting evidence of defendant's gangaffiliation, along with expert testimony that new members of the gang commit violentcrimes to impress senior members and rise in status. This evidence was highly probativeof defendant's motive and central to the jury's understanding of an otherwise unexplainedmurder (see People v Edwards, 295 AD2d 270 [1st Dept 2002], lv denied99 NY2d 557 [2002]). Contrary to defendant's argument, the testimony actuallygiven by the expert fully supported the People's theory of admissibility. The court alsoproperly exercised its discretion in receiving evidence that witnesses observed defendantselling drugs on prior occasions, which was probative of their ability to make a reliableidentification, and in precluding defendant from introducing physical evidence thatlacked probative value under the circumstances of the case.
The court properly denied defendant's motion to suppress identification testimony.The record supports the court's finding that the photo array was not unduly suggestive.Defendant and the other participants were reasonably similar in appearance, and therewas no substantial likelihood that defendant would be singled out (see People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).Moreover, even if there was anything suggestive about the photo array, the passage oftime between the photo procedure and the lineups sufficed to attenuate any taint (see e.g. People v Leibert, 71AD3d 513, 514 [1st Dept 2010], lv denied 15 NY3d 752 [2010]). The courtalso correctly found that the lineups were not unduly suggestive, notwithstanding any agediscrepancy between defendant and the fillers (see People v Jackson, 98 NY2d555, 559 [2002]).
The evidence at an ex parte hearing established an overriding interest that warrantedclosure of the courtroom during the testimony of five of the People's civilian witnesses(see Waller v Georgia, 467 US 39 [1984]), and the ex parte proceedings did notviolate defendant's rights (see People v Frost, 100 NY2d 129, 137 [2003]). Therewas abundant evidence that raised serious concerns about witness safety andintimidation. The court's determination carefully satisfied each of the requirements setforth in Waller (467 US at 48).
The court properly denied defendant's application for a material witness order sincehe failed to establish "reasonable cause to believe" that the proposed witness possessed"information material to the determination" of the case (CPL 620.20 [1] [a]). We findunpersuasive defendant's assertion that the proffered witness's inability to make the sameobservations that were made by a prosecution witness cast doubt on that witness'scredibility.
We perceive no basis for reducing the sentence. We decline to revisit this Court'sprior determinations (2013 NY Slip Op 84721[U] [2013]) concerning sealed andredacted materials. Concur—Mazzarelli, J.P., Renwick, Saxe and Moskowitz,JJ.