| People v Lipton |
| 2018 NY Slip Op 04754 [162 AD3d 1070] |
| June 27, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gilbert Lipton, Appellant. |
Salvatore C. Adamo, New York, NY, for appellant, and appellant pro se.
Timothy D. Sini, District Attorney, Riverhead, NY (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D.Cohen, J.), rendered March 4, 2015, convicting him of burglary in the second degree andcriminal possession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of those branches of thedefendant's motion which were to suppress physical evidence and identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court's determination that his consent tothe search of his apartment was voluntarily given and was not the product of coercion wassupported by the evidence at the suppression hearing (see People v Gonzalez, 39 NY2d122, 128-130 [1976]; People vBurno, 130 AD3d 747, 747 [2015]; People v Edwards, 46 AD3d 698, 699 [2007]). The fact that thedefendant may have been in custody (see People v Yukl, 25 NY2d 585, 589 [1969]) atthe time of the consent does not preclude a finding that his consent was voluntary (see Peoplev Rodriguez, 11 NY2d 279, 287 [1962]; People v Edwards, 46 AD3d at 699).Accordingly, we agree with the County Court's determination to deny that branch of thedefendant's motion which was to suppress physical evidence obtained from the search of hisapartment (see People v Curtis, 144AD3d 1199, 1200 [2016]; People v Burno, 130 AD3d at 747).
We also agree with the County Court's determination to deny that branch of the defendant'smotion which was to suppress identification testimony. The evidence adduced at theWade hearing (see United States v Wade, 388 US 218 [1967]) established that thepretrial identification [*2]procedures were not unduly suggestive,as the persons depicted in the computer-arranged photographic arrays were sufficiently similar inappearance to the defendant (see Peoplev Allen, 118 AD3d 902, 903 [2014]; People v Lago, 60 AD3d 784, 784 [2009]). The position of thedefendant's photograph in the array did not render the procedure unduly suggestive (see People v Lind, 20 AD3d 765,767 [2005]; cf. People v Bernier, 245 AD2d 137, 137-138 [1997]; People vSnow, 237 AD2d 118, 118 [1997]).
Contrary to the defendant's contention, the County Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371, 376 [1974]) was an appropriate exercise of discretion."The extent to which the prosecution should be allowed to impeach the credibility of a defendantis a matter that is generally left to the sound discretion of the trial court" (People v Rodriguez, 111 AD3d856, 858 [2013]; see People v Bennette, 56 NY2d 142, 146 [1982]). Here, the court'sSandoval ruling permitting the People to inquire as to whether the defendant had beenconvicted of four felonies, but precluding any questioning about the underlying facts of thoseprior crimes, avoided any undue prejudice to the defendant and constituted a provident exerciseof the court's discretion (see People vEdwards, 118 AD3d 909, 909 [2014]; People v Brown, 101 AD3d 895, 896 [2012]; People v Murad, 55 AD3d 754,755 [2008]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was 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]).Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.