| People v Gray |
| 2016 NY Slip Op 00378 [135 AD3d 874] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Gray, Appellant. |
Lynn W. L Fahey, New York, NY (A. Alexander Donn of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andSholom J. Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered February 19, 2013, convicting him of murder in the second degree,robbery in the first degree, 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, of that branch of the defendant's omnibus motion which was to suppressin-court identification evidence.
Ordered that the judgment is affirmed.
An in-court identification of a defendant will not be suppressed merely by reason ofan antecedent unlawful seizure, so long as the People establish, by clear and convincingproof, that the in-court identification is derived from the witness's independentrecollection (see People v White, 117 AD2d 127, 133 [1986]; see also People v Marte, 12NY3d 583, 586 [2009]; People v Houston, 82 AD3d 1122, 1122 [2011]; Peoplev Ashe, 297 AD2d 287, 288 [2002]). The independent observation must be reliableunder the totality of the circumstances (see People v Adelman, 36 AD3d 926, 927 [2007]). Theamount of time that a witness has to observe the defendant is only one factor to beconsidered (see People v Radcliffe, 273 AD2d 483, 484 [2000]; People vHyatt, 162 AD2d 713, 713-714 [1990]), and "even a matter of a few seconds maysuffice for independent source purposes" (People v Williams, 222 AD2d 149,153-154 [1996]). Here, after conducting a hearing and reviewing the appropriate factors(see Neil v Biggers, 409 US 188, 199-200 [1972]; People v Lopez, 85 AD3d1641, 1641 [2011]), the hearing court properly concluded that the People establishedby clear and convincing evidence that the trained police officer's observations during thecommission of the crime provided an independent basis for the officer's in-courtidentification of the defendant. The officer described the suspect's gender, race, height,and clothing, and the type of weapon that he was holding, after observing him during aface-to-face encounter in well-lit surroundings (see People v Small, 110 AD3d 1106, 1106-1107 [2013];People v Allah, 283 AD2d 436, 436 [2001]; Matter of Tarik R., 232AD2d 233 [1996]; People v Weiner, 226 AD2d 757, 758 [1996]; People vJones, 215 AD2d 244, 244 [1995]; People v Hyatt, 162 AD2d at 713-714).The court credited the officer's testimony that he viewed the perpetrator face-to-face forfive to six seconds, and we find no basis to disturb the court's determination that theofficer's testimony was credible (see People v Kelly, 131 AD3d 484, 485 [2015]).
The defendant's contention that the People failed to prove his identity as one of the[*2]perpetrators of the crime beyond a reasonable doubtis unpreserved for appellate review (see CPL 470.05 [2]; People v Gray,86 NY2d 10 [1995]; People vWiggs, 130 AD3d 659, 659 [2015]; People v Harris, 129 AD3d 990, 990-991 [2015]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's identity beyond a reasonable doubt (see People v Calabria, 3 NY3d80 [2004]; People vBrown, 119 AD3d 953, 954 [2014]; People v Ramirez, 221 AD2d 665,666 [1995], mod 89 NY2d 444 [1996]). Moreover, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, he has not demonstrated that his trial counselwas ineffective under either federal or state constitutional standards (see Strickland vWashington, 466 US 668, 687 [1984]; People v Caban, 5 NY3d 143, 156 [2005]; People vBaldi, 54 NY2d 137, 146-147 [1981]). The record establishes that defense counselprovided meaningful representation as a whole (see People v Benevento, 91NY2d 708, 712 [1998]), and the defendant has failed to show the absence of strategic orother legitimate explanations for his attorney's alleged shortcomings (see People v Barboni, 21NY3d 393, 405-407 [2013]; People v Benitez, 120 AD3d 705, 706 [2014]). Rivera, J.P.,Balkin, Roman and Sgroi, JJ., concur.