| People v Vaughn |
| 2016 NY Slip Op 00390 [135 AD3d 1158] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua J. Vaughn, Appellant. |
Samuel D. Castellino, Big Flats, for appellant, and appellant pro se.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Joshua Seth Shapiro ofcounsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered May 7, 2013, upon a verdict convicting defendant of the crimes ofattempted murder in the second degree and assault in the first degree.
Defendant was charged in an indictment with attempted murder in the second degreeand assault in the first degree as the result of a January 2012 incident wherein the victim,who was working security at a nightclub in the City of Binghamton, Broome County,was stabbed by a disgruntled would-be patron. Defendant was detained by police for ashowup identification in which the victim's brother, who was also working at thenightclub and observed the attack, confirmed that defendant was the perpetrator. CountyCourt rejected defendant's motion to suppress the identification and, following a jurytrial, defendant was found guilty as charged. Defendant was sentenced to an aggregateprison term of 15 years, to be followed by five years of postrelease supervision, and henow appeals.
We affirm. Defendant asserts that County Court should have suppressed the showupidentification by the victim's brother. "A showup identification is permissible so long asit was reasonable under the circumstances—that is, when conducted in closegeographic and temporal proximity to the crime—and the procedure used was notunduly suggestive" (People vToye, 107 AD3d 1149, 1150 [2013], lv denied 22 NY3d 1091 [2014][internal quotation marks and citations omitted]; see People v Howard, 22 NY3d 388, 402-403 [2013]).County Court conducted a hearing to assess the propriety of the showup, which revealedthat police officers on [*2]patrol were advised of thestabbing at approximately 2:05 a.m. Five minutes later, based upon the description of theperpetrator and reports as to where he had fled, police stopped defendant a few blocksfrom the nightclub. Defendant was nervous, gave inconsistent and inaccurate answers toquestions, and was detained and handcuffed behind his back after one of the patrolofficers observed blood on his hand. Defendant was then placed facing the street with hishands behind his back, and officers stood several feet away from him. The victim'sbrother agreed to travel to the site in order to determine if he recognized a possiblesuspect and, at 2:22 a.m., viewed defendant from the front and positively identified himas the attacker. County Court did not err in finding that this prompt showup identificationnear the crime scene was admissible (see People v Duuvon, 77 NY2d 541,544-545 [1991]; People vBellamy, 118 AD3d 1113, 1116 [2014], lv denied 25 NY3d 1159[2015]; People v August, 33AD3d 1046, 1048-1049 [2006], lv denied 8 NY3d 878 [2007]).
Defendant further argues that he was deprived of the effective assistance of counsel.He particularly points to voir dire, during which questioning conducted by County Courtwas transcribed, but the subsequent questioning by counsel was not. Defense counsel didnot object to that practice and, without any prejudice apparent from the record, "theabsence of a stenographic record does not, per se, require reversal of defendant'sconviction" (People v Harrison, 85 NY2d 794, 796 [1995]; accord People v Chappelle,126 AD3d 1127, 1128 [2015], lv denied 25 NY3d 1161 [2015]; see People v Jenkins, 90 AD3d1326, 1328-1329 [2011], lv denied 18 NY3d 958 [2012]). Defendantspeculates that defense counsel may have conducted a lackluster examination of aprospective juror—who was apparently thereafter placed on the jury withoutobjection—and asserts that defense counsel gave him erroneous advice in otherrespects. Inasmuch as those contentions involve matters not found in the record onappeal, however, defendant must properly develop them in a CPL article 440 motion (see People v Haffiz, 19 NY3d883, 885 [2012]; People vCarlton, 120 AD3d 1443, 1445 [2014], lv denied 25 NY3d 1070[2015]). The record as it exists reflects that defense counsel engaged in appropriatemotion practice, vigorously cross-examined the People's witnesses at trial and calledattention to inconsistencies in the identification of defendant as the perpetrator, and wehave no reason to doubt that defense counsel provided meaningful representation (seePeople v Henry, 95 NY2d 563, 565-566 [2000]; People v Rick, 224 AD2d790, 790 [1996], lv denied 88 NY2d 852 [1996]).
The sentence imposed by County Court, in light of the fact that defendant resolved apetty dispute by engaging in vicious acts that jeopardized the victim's life, was not harshor excessive. We have considered the contention advanced by defendant in his pro sesupplemental brief and find it to be without merit.
Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.