| People v Smart |
| 2016 NY Slip Op 05726 [142 AD3d 513] |
| August 3, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Smart, Appellant. |
Lynn W. L. Fahey, New York, NY (David P. Greenberg of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and JillOziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered November 7, 2012, convicting him of murder in the first degree (twocounts), attempted murder in the second degree, and criminal possession of a weapon inthe second degree (two counts), upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
We reject the defendant's contention that he was deprived of the right to counsel bythe trial court's denial of his motion for the substitution of new counsel, since thedefendant failed to make the requisite specific factual allegations of " 'seriouscomplaints about counsel' " (People v Porto, 16 NY3d 93, 100 [2010], quotingPeople v Medina, 44 NY2d 199, 207 [1978]; see People v Ward, 121 AD3d 1026, 1027 [2014]). In anyevent, the trial court made a sufficient inquiry into the defendant's criticisms of assignedcounsel, and thereupon provided a satisfactory solution to address his concerns (seePeople v Ward, 121 AD3d at 1027; People v Hortiz, 60 AD3d 692, 693 [2009]).
Contrary to the defendant's contention, the hearing court properly denied that branchof his omnibus motion which was to suppress lineup identification evidence (seePeople v Jackson, 98 NY2d 555, 558 [2002]; People v Chipp, 75 NY2d 327,335 [1990]). A review of the photograph that was taken at the lineup reveals that thelineup fillers possessed physical characteristics which were reasonably similar to those ofthe defendant, and that the police took reasonable steps to conceal any differencesbetween the appearances of the lineup fillers and the defendant (see People vChipp, 75 NY2d at 335; People v Reaves, 112 AD3d 746, 747 [2013]; People v Villacreses, 12 AD3d624, 625 [2004]; People v Walker, 215 AD2d 606, 606 [1995]; People vMoore, 193 AD2d 627, 627 [1993]). The defendant's contention that he was singledout by virtue of a tattoo on his neck and the color of his shirt is without merit, as therewas no evidence adduced at the Wade hearing (United States v Wade,388 US 218 [1967]) which indicated that the witnesses relied on those features in makingan identification (see People vSpence, 92 AD3d 905 [2012]; People v Jean-Baptiste, 57 AD3d 566, 567 [2008];People v Saunders, 306 AD2d 502, 502 [2003]; People [*2]v Tinnen, 238 AD2d 615, 616 [1997]). Furthermore,the defendant's contention regarding the age of the lineup fillers lacks merit (seePeople v Mattocks, 133 AD2d 89, 90 [1987]).
Viewing the evidence in the light most favorable to the prosecution, we find that theevidence was legally sufficient to prove the defendant's guilt beyond a reasonable doubt(see People v Contes, 60 NY2d 620, 621 [1983]). Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Roman and Maltese, JJ., concur.
Chambers, J., dissents, and votes to reverse the judgment, on the law, and order anew trial, to be preceded by a hearing to determine whether an independent source forthe identification testimony exists, with the following memorandum: I cannot subscribeto the majority's view that the lineup identification evidence in this case was not undulysuggestive. As the evidence of the defendant's guilt was far from overwhelming, andhinged essentially on the identification testimony (see People v Gethers, 86 NY2d159, 163 [1995]), I would reverse and order a new trial, to be preceded by anindependent source hearing (seePeople v Pride, 129 AD3d 869, 870 [2015]).
Although defense counsel may have failed specifically to point out, during theWade hearing (United States v Wade, 388 US 218 [1967]), the apparentdifference in age between the defendant and the fillers, the issue is nonetheless preservedfor appellate review because the hearing court expressly considered the age of the lineupparticipants in rendering its decision (see People v Powell, 101 AD3d 756, 757 [2012]; People v Davis, 69 AD3d647, 648-649 [2010]; butsee People v Colon, 46 AD3d 260, 262-264 [2007]).
When age is considered along with other factors, such as skin tone, height, and thepresence of a distinctive tattoo on the defendant's neck (which was plainly visible whenone of the witnesses asked each of the lineup participants to step close to the one-waymirror), the lineup, in my view, was unduly suggestive (see People v Robinson, 123AD3d 1062 [2014]; Peoplev Dobbins, 112 AD3d 735 [2013]; People v Puckett, 270 AD2d 364[2000]; People v Murphy, 260 AD2d 505 [1999]; People v Breitenbach,260 AD2d 389 [1999]).
Accordingly, I respectfully dissent.