| People v Fashaw |
| 2015 NY Slip Op 09175 [134 AD3d 490] |
| December 10, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Macquon Fashaw, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Svetlana M. Kornfeindof counsel), and Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (JennyC. Wu of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May15, 2012, convicting defendant, after a jury trial, of assault in the first degree, two countsof robbery in the first degree and two counts of criminal possession of a weapon in thesecond degree, and sentencing him to an aggregate term of 18 years, unanimouslyaffirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 349 [2007]). We find no basis to disturb the jury'sdeterminations concerning identification. The victim had a sufficient opportunity toobserve defendant and made a reliable identification. The jury could also havereasonably concluded that the remaining evidence tended to corroborate rather thanundermine the victim's testimony.
The court properly exercised its discretion in admitting certain entries fromdefendant's Facebook account, because the jury could have reasonably inferred that theymade reference to this case, and that they tended to show a consciousness of guilt (seegenerally People v Yazum, 13 NY2d 302 [1963]). The court provided a thoroughjury instruction on the proper weighing of such evidence. There was nothing in thecontent of these entries that was unduly prejudicial, and the probative value of thisevidence outweighed any prejudicial effect.
Although the court found that there was a violation of Payton v New York(445 US 573 [1980]), the record supports the court's determination that defendant's oraland videotaped statements were attenuated from any illegality (see Brown vIllinois, 422 US 590, 602-604 [1975]; People v Harris, 77 NY2d 434[1991]). There was an interval of several hours between defendant's arrest and theinterrogation, which was conducted at the precinct after he had been given something toeat and drink and left alone for a time, and after Miranda warnings were given.The record also supports the court's finding that, although the police ultimately made anunlawful entry, there was no flagrant misconduct, because the detectives attempted apeaceful, consensual entry, for which a warrant is unnecessary, and events ensued thatcaused them to fear for their safety. Defendant's videotaped statement was even furtherattenuated, since it was made six hours later at a different location to a differentinterviewer. In any event, any error in the admission of this evidence washarmless.
[*2] We perceive no basis for reducingthe sentence.
We have considered and rejected defendant's remaining arguments.Concur—Mazzarelli, J.P., Richter, Manzanet-Daniels and Kapnick, JJ.