| People v Baez |
| 2019 NY Slip Op 03611 [172 AD3d 893] |
| May 8, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Baez, Appellant. |
Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Danielle S. Fenn of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County(Charles S. Lopresto, J.), rendered December 2, 2013, convicting him of robbery in the firstdegree (three counts), and criminal possession of a weapon in the third degree, upon a juryverdict, and imposing sentence, and (2), by permission, from an order of the same court datedMarch 15, 2017, which denied, without a hearing, his motion to vacate the judgment pursuant toCPL 440.10. The appeal from the judgment brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment and the order are affirmed.
The lineup from which the defendant was identified was not suggestive. " 'While thefillers used in a lineup must be sufficiently similar to the defendant so that no characteristic orvisual clue would orient the viewer toward the defendant as a perpetrator of the crimes charged(see People v Lundquist, 151 AD2d 505, 506 [1989]), there is no requirement that adefendant in a lineup be accompanied by individuals nearly identical in appearance' " (People v Jean-Baptiste, 57 AD3d566, 566-567 [2008], quoting People v Cintron, 226 AD2d 390, 390-391 [1996];see People v Chipp, 75 NY2d 327, 336 [1990]). Here, the fillers sufficiently resembledthe defendant (see People v Fingall,136 AD3d 622, 623 [2016]; Peoplev Speaks, 124 AD3d 689, 690 [2015], affd 28 NY3d 990 [2016]). Moreover, thepolice took reasonable steps to conceal any differences between the appearances of the lineupparticipants and the defendant (seePeople v Bradley, 160 AD3d 760, 761 [2018]) by having the men seated, with a sheetover their lap, and their numbers held in front of them. In addition, the men all wore baseballcaps backwards on their heads to account for any differences in hairstyles (see People v DeJesus, 140 AD3d788, 789 [2016]; People vBrown, 47 AD3d 826, 827 [2008]; People v Johnson, 306 AD2d 214, 215[2003]).
The defendant's contention that the evidence was legally insufficient to support hisconviction because the prosecution failed to establish his identity as the perpetrator of the crimesis unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Hankerson,149 AD3d 778, 778 [2017]). In any event, viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish his identity as the perpetrator. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348-349 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, 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 recordhere, 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 defendant failed to preserve for appellate review his contention that the testimony of apolice detective, who testified that the defendant was arrested after one of the victims viewed thelineup, and comments made by the prosecutor in her opening statement and summation,implicitly bolstered the complainant's identification of the defendant from the lineup (see People v Locenitt, 157 AD3d905, 907 [2018]; People vBonilla, 151 AD3d 735, 736 [2017]). In any event, although the testimony constitutedimproper bolstering and the comments were improper (see People v Holmes, 167 AD3d 1039 [2018]; People vFields, 309 AD2d 945, 945 [2003]), any error in their admission was harmless, as theevidence of the defendant's guilt was overwhelming and there was no significant probability thatthe error contributed to the defendant's conviction (see People v Crimmins, 36 NY2d230, 241-242 [1975]).
We agree with the Supreme Court's denial of the defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, since there is no merit to the defendant's contention that hewas deprived of the effective assistance of counsel. The defendant received meaningfulrepresentation (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Graham, 129 AD3d 860,861-862 [2015]).
The defendant's remaining contentions are without merit. Dillon, J.P., Leventhal,Hinds-Radix and Duffy, JJ., concur.