| People v Bradley |
| 2018 NY Slip Op 02481 [160 AD3d 760] |
| April 11, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Israel Bradley, Appellant. |
Paul Skip Laisure, New York, NY (White & Case LLP [Charles R. Koster, LauraLogsdon, Elizabeth Stainton, Paul B. Carberry, and Louis O'Neill], of counsel) for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Rhea A. Grob ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (SuzanneMondo, J.), rendered July 14, 2015, convicting him of robbery in the first degree and robbery inthe second degree, upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification evidence.
Ordered that the judgment is affirmed.
The evidence at trial established that on November 25, 2013, at approximately 10:52 a.m.,the defendant and another individual entered a smoke shop on Myrtle Avenue in Brooklyn andtook money from the cash register. In addition, the defendant, at gunpoint, took money from thecomplainant, who worked as a cashier at the shop. Following a jury trial, the defendant wasconvicted of robbery in the first degree and robbery in the second degree.
The defendant's contentions that the photographic and lineup identification procedures wereunduly suggestive is partially unpreserved for appellate review (see CPL 470.05 [2]). Inany event, the defendant's contentions are without merit. The photo array consisted of thedefendant's photograph and photographs depicting individuals who were sufficiently similar tothe defendant in appearance such that there was little likelihood that the defendant would besingled out for identification based on particular characteristics (see People v Chipp, 75NY2d 327, 336 [1990]; People vStaton, 138 AD3d 1149, 1150 [2016], affd 28 NY3d 1160 [2017]; People v Thomas, 104 AD3d 710,711 [2013]; People v Brown, 89AD3d 1032, 1033 [2011]). Furthermore, a review of the photograph that was taken at thelineup reveals that the lineup participants possessed physical characteristics that were reasonablysimilar to those of the defendant, and that the police took reasonable steps to conceal anydifferences between the appearances of the lineup participants and the defendant (see People v Chavez, 135 AD3d952, 952 [2016]; People vJean-Baptiste, 57 AD3d 566, 567 [2008]). Accordingly, the Supreme Court properlydenied that branch of the defendant's omnibus motion which was to suppress identificationevidence.
The defendant further argues that the Supreme Court erred in denying his request for a jurycharge on cross-racial identification. We agree. In People v Boone (30 NY3d 521, 535-536 [2017]), the [*2]Court of Appeals held that where, as here, "a witness'sidentification of the defendant is at issue, and the identifying witness and defendant appear to beof different races, a trial court is required to give, upon request, during final instructions, a jurycharge on the cross-race effect, instructing (1) that the jury should consider whether there is adifference in race between the defendant and the witness who identified the defendant, and (2)that, if so, the jury should consider (a) that some people have greater difficulty in accuratelyidentifying members of a different race than in accurately identifying members of their own raceand (b) whether the difference in race affected the accuracy of the witness's identification."
However, the failure to charge the jury with respect to cross-racial identification does not inour view mandate reversal in all cases. In Boone, the Court determined that there was nomerit to the People's contention that any error in failing to give a cross-racial identificationcharge was harmless (see id. at 537). However, unlike Boone, where the facts didnot permit a finding of harmless error, under the circumstances of the present case, the SupremeCourt's failure to give a cross-racial identification charge constituted harmless error. Thedefendant identified himself as the individual shown in a surveillance video taken inside a deliadjacent to the smoke shop approximately 40 minutes before the robbery. A surveillance videotaken outside the deli at that time showed the individual on the sidewalk walking past the smokeshop and entering the deli. Additionally, the surveillance video taken outside the deli showed thesame individual entering and exiting the smoke shop at the exact time of the robbery.Immediately after the crime, the complainant gave a very precise and detailed description of thedefendant to a detective, which included a unique identifying characteristic, namely, a brownbirthmark on the white of the defendant's eye. During the arrest process of the defendant, thearresting detective immediately observed the distinctive marking on the defendant's eye. Underthe circumstances, the error in failing to administer the charge on cross-racial identification washarmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the defendant would have been acquitted if not for the error (see People vCrimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's remaining contention is without merit. Balkin, J.P., Austin, Roman andSgroi, JJ., concur.