| People v Lancaster |
| 2018 NY Slip Op 07754 [166 AD3d 807] |
| November 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Herman Lancaster, Appellant. |
Hegge & Confusione, LLC, New York, NY (Michael Confusione of counsel),for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordleyof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Danny Chun, J.), rendered January 4, 2017, convicting him of murder in the seconddegree and criminal possession of a weapon in the second degree (two counts), after anonjury trial, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppressidentification evidence.
Ordered that the judgment is affirmed.
The charges against the defendant arose from a shooting at a store in Brooklyn whichresulted in the death of the victim. The shooting, which was captured on severalsurveillance cameras located inside and outside the store, showed an individual wearing ablack jacket, a hat with a pompom, and a red scarf fire a gun several times at the victimas the victim fled from the store. The defendant and another individual were stopped bythe police near the scene of the crime shortly after it occurred and taken into custody. Ata showup identification conducted shortly thereafter, an employee of the store whowitnessed the shooting identified the defendant as the perpetrator.
We agree with the Supreme Court's determination denying that branch of thedefendant's omnibus motion which was to suppress identification evidence. "Showupprocedures, although generally disfavored, are permissible where employed in closespatial and temporal proximity to the commission of the crime for the purpose ofsecuring a prompt and reliable identification" (People v Castro, 149 AD3d 862, 863 [2017]; see People v Huerta, 141AD3d 602, 602 [2016]). Here, the showup procedure took place approximately 30minutes after the shooting and one block away from the crime scene. The People mettheir initial burden of establishing the reasonableness of the police conduct and the lackof undue suggestiveness in the showup identification through the testimony of thedetective who brought the witness to the showup location, and through the testimony ofthe police officer who apprehended the defendant (see People v Slattery, 147 AD3d 788, 790 [2017]; People v Bartlett, 137 AD3d806, 806 [2016]; People vMack, 135 AD3d 962, 963 [2016]; People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Ervin, 118 AD3d910, 911 [2014]; People vSain, 111 AD3d 964, 965-966 [2013]; People v Calero, 105 AD3d 864, 865 [2013]). Contrary tothe defendant's contention, the showup identification was not rendered unduly suggestivebecause he was handcuffed and in the presence [*2]ofuniformed police officers and police cars (see People v Slattery, 147 AD3d at790; People v Williams, 143AD3d 847, 848 [2016]; People v Bartlett, 137 AD3d at 806; People v Ward, 116 AD3d989, 991 [2014]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions because the prosecution failed to establish his identity as the perpetrator ofthose crimes is without merit. Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's identity beyond a reasonable doubt (see People v Lewis, 150 AD3d1264, 1264 [2017]; Peoplev Thomas, 146 AD3d 991, 992 [2017]; People v Calas, 134 AD3d 1043, 1045 [2015]; People v Pride, 129 AD3d869, 869 [2015]; People vDelgado, 109 AD3d 483, 483 [2013]). Moreover, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople 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 guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Although theemployee of the store was unable to make an in-court identification of the defendant asthe perpetrator, despite his testimony that he saw the perpetrator at the store almost everyday, he testified that at the showup identification, he positively identified the individualwearing the red scarf as the perpetrator (see People v Killings, 159 AD3d 1398, 1399 [2018]; People v Dixson, 147 AD3d484, 484 [2017]). The police officer who apprehended the defendant and conductedthe showup procedure confirmed that the defendant was wearing a red scarf (see People v John, 51 AD3d819, 820 [2008]).
The defendant also contends that the admission into evidence of an autopsy reportprepared by a medical examiner through the testimony of another medical examineremployed by the Office of the Chief Medical Examiner for the City of New Yorkdeprived him of his constitutional right of confrontation. This contention is unpreservedfor appellate review (see CPL 470.05 [2]; People v Jackson, 125 AD3d 1002, 1004 [2015]; People v Green, 110 AD3d825, 826 [2013]) and, in any event, without merit (see People v John, 27 NY3d294, 315 [2016]; People vFreycinet, 11 NY3d 38, 41 [2008]; People v Portes, 125 AD3d 794, 794 [2015]; People v Acevedo, 112 AD3d454, 455 [2013]; People vHerb, 110 AD3d 829, 830 [2013]).
Contrary to the defendant's contention, the People established a sufficient chain ofcustody of certain clothing recovered from the defendant by providing reasonableassurances of the identity and unchanged condition of the clothing between its recoveryand the trial (see People vOrtiz, 80 AD3d 628, 630 [2011]; People v Caswell, 56 AD3d 1300, 1303 [2008]; Peoplev Miller, 242 AD2d 896, 897 [1997]). Any deficiencies in the chain of custody wentonly to the weight to be accorded the evidence, not its admissibility (see People v Hawkins, 11NY3d 484, 494 [2008]; People v Julian, 41 NY2d 340, 343 [1977]; People v Mustafa, 114 AD3d966, 967 [2014]; People v Donovan, 141 AD2d 835, 836-837 [1988]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Chambers, Barros and Brathwaite Nelson, JJ., concur.