| People v Solano |
| 2016 NY Slip Op 02912 [138 AD3d 525] |
| April 14, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v David Solano, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Stephen S.Mar of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth F. Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J., at suppressionhearing and expert witness application; Cassandra M. Mullen, J., at jury trial andsentencing), rendered November 29, 2010, as amended December 14, 2012, convictingdefendant of two counts of robbery in the first degree, two counts of robbery in thesecond degree, three counts of burglary in the second degree and three counts of grandlarceny in the fourth degree, and sentencing him, as a persistent violent felony offender,to an aggregate term of 25 years to life, unanimously affirmed.
The court properly denied defendant's suppression motion. The police searcheddefendant's phone by means of a valid warrant based on probable cause that wasindependent of a prior unlawful search of the phone for contact information, made whena detective mistook it for the phone of a codefendant, who had consented to such asearch (see People v Arnau, 58 NY2d 27 [1982]). The decision to obtain awarrant was not prompted by what was discovered in the initial search, and thecircumstances were far removed from the type of exploitation of illegality discussed inPeople v Marinez (121AD3d 423 [1st Dept 2014]). In any event, any error in this regard was harmless(see People v Crimmins, 36 NY2d 230 [1975]). Evidence obtained fromdefendant's phone added little to the People's overwhelming case, which included thevictim's testimony that he recognized the voice of his masked assailant as that ofdefendant, with whom he had worked closely for approximately two months, and whichalso included a chain of compelling circumstantial evidence.
The motion court properly exercised its discretion in denying defendant's applicationto present an expert witness on voice identification. The case did not turn on the accuracyof the voice identification, because there was extensive, competent corroboratingevidence (see People vSantiago, 17 NY3d 661, 669-671 [2011]). Defendant's efforts to downplay thestrong circumstantial evidence are unavailing.
The trial court, which gave an expanded instruction on identification that it adaptedfor voice identifications, properly exercised its discretion in declining to add languagerelating to cross-racial identification. Defendant has not shown how a difference in racewould affect an identification of a masked suspect, made entirely by voice, and by awitness who was very familiar with the voice.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Acosta, Moskowitz, Gische and Webber, JJ.