| People v Mann |
| 2020 NY Slip Op 03249 [184 AD3d 670] |
| June 10, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Mann, Appellant. |
Paul Skip Laisure, New York, NY (White & Case LLP [Jacqueline Chung], of counsel),for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Joseph N. Ferdenzi,and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (LenoraGerald, J.), rendered October 11, 2017, convicting him of robbery in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and thematter is remitted to the Supreme Court, Queens County, for further proceedings consistent withCPL 160.50.
In the early morning hours of July 15, 2016, the complainant was robbed inside an automaticteller machine vestibule of a bank. Immediately after the robbery, the complainant reported theincident and filed a police report. On July 20, 2016, the complainant viewed a lineup, andidentified the defendant as the perpetrator.
At a pretrial Wade hearing (see United States v Wade, 388 US 218 [1967]),the defendant argued that the identification testimony should be suppressed as the identificationprocedures were unduly suggestive. The hearing court denied suppression of the identificationtestimony. At trial, the sole evidence against the defendant was the identification testimony of thecomplainant. The jury convicted the defendant of robbery in the first degree.
The defendant's contention that the evidence was legally insufficient to support a convictionof robbery in the first degree is unpreserved for appellate review (see People v Gray, 86NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt of robbery in the first degree beyond a reasonabledoubt.
However, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), and after according greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]), we find that the verdict of guilt was against the weight of the credibleevidence.
The evidence presented at trial established that the complainant described the perpetrator tothe police as balding with no facial hair. The participants in the lineup five days later wore hats toconceal their hairlines. However, the defendant's significant facial hair was visible. Further, thedefendant was the only participant in the lineup who was wearing a yellow shirt. Although theshirts of the participants in the lineup were covered with a cloth, the defendant's shouldersremained visible. The perpetrator had also worn a yellow shirt. After viewing the lineup, thecomplainant told the investigating officer that she recognized the defendant's yellow shirt as theshirt worn by the perpetrator, indicating that the most significant similarity between theperpetrator and the defendant visible to her was his yellow shirt.
Since the complainant's identification of the defendant as the perpetrator was notcorroborated by any other evidence, we conclude, based upon our review of the facts, that there isa reasonable doubt as to whether the defendant committed this crime.
The defendant's remaining contentions need not be addressed in light of our determination.Balkin, J.P., Hinds-Radix, Duffy and Brathwaite Nelson, JJ., concur.