| People v Bonilla |
| 2017 NY Slip Op 04452 [151 AD3d 735] |
| June 7, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Josue Bonilla, Appellant. |
Law Office of Stephen N. Preziosi, P.C., New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Jason R. Richards and John B. Latella ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered November 22, 2013, convicting him of assault in the first degree (two counts) andassault in the second degree (four counts), upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions(Peck, J.), of the suppression of identification testimony.
Ordered that the judgment is modified, on the law, by vacating the convictions of assault inthe second degree under counts six and seven of the indictment, vacating the sentences imposedthereon, and dismissing those counts of the indictment; as so modified, the judgment isaffirmed.
The Supreme Court properly denied suppression of identification testimony. There was nohearing testimony establishing that police involvement tainted any of the identificationprocedures (cf. People v Stevens, 44AD3d 882, 883 [2007]). There is also no basis to find that the lineup procedures wereunduly suggestive simply because the lineups were conducted after the witnesses had selected thedefendant's photo from an array (see People v Rodriguez, 64 NY2d 738, 740-741 [1984];People v Rodriguez, 17 AD3d267, 268 [2005]). Moreover, since the issue before the court was whether there was probablecause to arrest the defendant based on the photo array, defense counsel was properly preventedfrom cross-examining a police witness regarding the eyewitnesses' descriptions of the assailant(see People v Hoehne, 203 AD2d 480, 481 [1994]). The defendant's claim that the courtimproperly denied his application for disclosure of the identification witnesses' identities is alsowithout merit (see People v Granville, 221 AD2d 558 [1995]; People v McAvoy,142 AD2d 605, 605-606 [1988]).
The defendant's contention that the trial testimony of a police detective implicitly bolsteredthe witnesses' identification of the defendant from the photo arrays and lineup procedures isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the bolsteringcontention regarding the lineup is without merit, as the detective never testified that any of thewitnesses viewing the lineup made an identification (see People v Fingall, 136 AD3d 622, 623 [2016]). The defendantwaived any contention of bolstering with regard to the photo arrays, as testimony regarding thearrays was first elicited not by the People but by defense counsel (see People v Bryan, 50 AD3d1049, 1050-1051 [2008]).
[*2] Thedefendant's contention that the Supreme Court erred in allowing prejudicial mugshot photos ofthe defendant to be introduced into evidence is unpreserved for appellate review (see CPL470.05 [2]) and, in any event, without merit (see People v Esdaille, 160 AD2d 811, 812[1990]).
Moreover, the Supreme Court's charge relating to assault in the first degree was correctbecause the defendant, expressly electing to pursue a defense of misidentification only, concededthe elements of the crime to which he now objects (see People v Lewis, 92 AD3d 442, 443 [2012]; People vBaker, 298 AD2d 104 [2002]).
The People correctly concede that two of the defendant's convictions of assault in the seconddegree must be vacated, and those counts of the indictment dismissed, as they are inclusoryconcurrent counts of assault in the first degree (see CPL 300.30 [4]; 300.40 [3] [b]; PenalLaw §§ 120.05 [1], [2]; 120.10 [1]; People v LaConte, 45 AD3d 699, 699-700 [2007]; People v DeFreitas, 19 AD3d 506,507 [2005]). However, the defendant's contention that the counts of assault in the first degreewere multiplicitous is unpreserved for appellate review (see CPL 470.05 [2]; People v Wall, 92 AD3d 812, 813[2012]) and, in any event, without merit (see People v Saunders, 290 AD2d 461, 463[2002]).
Contrary to the defendant's contention, the verdict was not repugnant. There is norequirement that the defendant be found guilty of a completed felony in order to sustain aconviction of assault in the first degree under a theory of felony assault (see People v Williams, 83 AD3d744, 745 [2011]).
The defendant's remaining contentions are without merit. Mastro, J.P., Leventhal, Austin andRoman, JJ., concur.