| People v Shepard |
| 2016 NY Slip Op 02860 [138 AD3d 895] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Emania Shepard, Appellant. |
Alan Katz, Garden City Park, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Michael J.Balch of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(Delligatti, J.), rendered April 22, 2013, convicting him of burglary in the second degree,burglary in the third degree (4 counts), grand larceny in the fourth degree (5 counts), andpetit larceny (10 counts), upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial (Ayres, J.), after a hearing pursuant to a stipulation in lieu ofmotions, of the suppression of identification testimony, physical evidence, and thedefendant's statements to law enforcement officials.
Ordered that the judgment is affirmed.
The evidence presented at a suppression hearing established that on the afternoon ofJanuary 31, 2012, the defendant was seen taking a cellphone from an unlocked carparked in a commercial area of Lynbrook. An employee of the car's owner observed thedefendant reaching into the car, confronted the defendant, and restrained him until thepolice arrived, at which time he was arrested. The defendant was found to be inpossession of merchandise from a nearby clothing store and car keys taken from a nearbyinsurance brokerage office. The defendant was taken to the local police station, where hemade statements inculpating himself in connection with crimes at those three locations.He also admitted to taking part in criminal activity in recent incidents at other locationsincluding a health club in Jericho, a music store in Baldwin, a residence in RockvilleCentre, and a doctor's office in East Meadow. A security guard of a motel located next tothe health club viewed a police-arranged photo array, from which he identified thedefendant as a resident of the motel. Several weeks earlier, an owner of the health clubhad shown the security guard a photograph of the defendant, which he captured from thehealth club's surveillance camera. At that time, the security guard confirmed that theperson in the photograph was a resident of the motel.
The hearing court properly denied suppression of evidence regarding thepolice-arranged photo array and the security guard's in-court identification of thedefendant, upon finding that the identification of the defendant from the photo array wasmerely confirmatory and not unduly suggestive (see People v Jacobs, 65 AD3d 594, 595 [2009]; People v Andrews, 30 AD3d434, 435 [2006]; cf. Peoplev Coleman, 73 AD3d 1200, 1202-1203 [2010]).
[*2] The hearing court also properly denied suppression ofphysical evidence seized incident to the defendant's lawful arrest (see People v Verges, 120AD3d 1028, 1029 [2014]; People v Bell, 82 AD3d 997, 998 [2011], mod 21NY3d 915 [2013]; People v Freeman, 283 AD2d 518 [2001]; People vPagan, 184 AD2d 738 [1992]), as well as the defendant's statements to lawenforcement officials which were made following the administration of Mirandawarnings (Miranda v Arizona, 384 US 436 [1966]) and his knowing andvoluntary waiver thereof (seePeople v Petronio, 34 AD3d 602, 604 [2006]; People v Rushion, 26 AD3d448 [2006]).
The admission of evidence of prior convictions for the purpose of impeachment iswithin the discretion of the trial court, which must weigh the probative value of thedefendant's prior crimes on the issue of credibility against the potential prejudice to thedefendant (see People v Rahman, 46 NY2d 882, 883 [1979]; People vSandoval, 34 NY2d 371, 375 [1974]; People v Cruz, 21 AD3d 967 [2005]; People v Hines, 3 AD3d580 [2004]; People v Williams, 292 AD2d 474, 475 [2002]; People vForino, 287 AD2d 519 [2001]). Here, the County Court's Sandoval rulingwas a provident exercise of discretion, as the court weighed the relevant factors andstruck an appropriate balance (see People v Vetrano, 88 AD3d 750 [2011]; People vClarke, 265 AD2d 566 [1999]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establishbeyond a reasonable doubt that the defendant was guilty of burglary in the second degreewhen he knowingly entered or remained unlawfully in a dwelling with intent to commit acrime therein (see Penal Law § 140.25 [2]; People v Hammon, 47 AD3d644, 645 [2008]); that he was guilty of burglary in the third degree (4 counts) whenhe knowingly entered or remained unlawfully in buildings with intent to commit crimestherein (see Penal Law § 140.20; People v Betancourt, 68NY2d 707 [1986]; People vAlsaifullah, 96 AD3d 1103 [2012]; Matter of Tyshawn J., 304 AD2d331 [2003]; People v Shurn, 69 AD2d 64, 68 [1979]); that he was guilty of grandlarceny in the fourth degree (5 counts) when he forcibly stole property, the value ofwhich, in each instance, exceeded $1,000, or was a credit or debit card (see PenalLaw § 155.30 [1], [4]); and that he was guilty of petit larceny (10 counts)(see Penal Law § 155.25). Moreover, upon the exercise of ourfactual review power (see CPL 470.15 [5]), we are satisfied that the verdict ofguilt as to those crimes was not against the weight of the credible evidence (see People v Romero, 7 NY3d633, 644-645 [2006]; People v Cusimano, 47 AD3d 725 [2008]; People v Simmons, 31 AD3d1051, 1053 [2006]).
The County Court providently exercised its discretion in denying the defendant'srequest for an adverse inference charge with respect to a surveillance video of one of thecharged burglaries that was not submitted into evidence (see People v Wallace, 106AD3d 1034, 1035 [2013]).
The defendant's remaining contention is without merit. Mastro, J.P., Hall, Miller andLaSalle, JJ., concur.