| People v Johnson |
| 2021 NY Slip Op 01675 [192 AD3d 1612] |
| March 19, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joshua Q. Johnson, Appellant. |
Paul B. Watkins, Fairport, for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, J.), renderedOctober 18, 2017. The judgment convicted defendant upon a jury verdict of assault in the firstdegree (two counts), assault in the second degree (two counts), burglary in the first degree (fourcounts) and robbery in the first degree (four counts).
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Ontario County, for further proceedings in accordance with the followingmemorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of assault in the first degree (Penal Law § 120.10 [1], [4]), two counts ofassault in the second degree (§ 120.05 [2], [6]), four counts of burglary in the firstdegree (§ 140.30 [1], [2], [3], [4]), and four counts of robbery in the first degree(§ 160.15 [1], [2], [3], [4]). The conviction arises from a home invasion robbery bytwo perpetrators during which one victim was struck in the head with the end of a shotgun andanother victim was shot in the abdomen, rendering him paraplegic.
Defendant contends that Supreme Court erred in denying that part of his omnibus motionseeking to suppress testimony regarding a witness's pretrial identification of the perpetrators onvideo surveillance footage taken from a nearby building to which the perpetrators had beentracked by a K-9 unit on the night of the events. Initially, we conclude "neither defendant'sgeneral objection to undue suggestiveness in that part of his omnibus motion seeking suppressionof the identification nor his [unspecified] argument[ ] to the hearing court were sufficient topreserve for our review his contention that the identification procedure was unduly suggestive" asa result of the timing and setting of the witness's viewing of the video recording on the night ofthe robbery and shooting (People vGambale, 150 AD3d 1667, 1667-1668 [4th Dept 2017]). Defendant "failed to raise thatspecific contention either as part of his omnibus motion . . . or at the Wadehearing" (People v Morman, 145AD3d 1435, 1436 [4th Dept 2016], lv denied 29 NY3d 999 [2017]). We note,however, that the court made factual findings regarding the timing and setting of theidentification procedure, and drew a legal conclusion that, based on the circumstances, theprocedure was entirely proper and not unduly suggestive (see Gambale, 150 AD3d at1668). We therefore agree with defendant that the court "expressly decided the question raised onappeal," thereby preserving his specific contention for our review (CPL 470.05 [2]; see People v Prado, 4 NY3d 725,726 [2004], rearg denied 4 NY3d 795 [2005]; Gambale, 150 AD3d at 1668).
We nonetheless conclude that defendant's contention lacks merit. To the extent thatdefendant relies on trial testimony in support of his contention, we note that "our review islimited to the evidence presented at the suppression hearing" (People v Jennings, 295AD2d 1000, 1000 [4th Dept 2002], lv denied 99 NY2d 536 [2002]). " '[T]here isnothing inherently suggestive' in showing a witness a surveillance video depicting the defendantand other individuals, provided that the 'defendant was not singled-out, portrayed unfavorably, orin any [*2]other manner prejudiced by police conduct or commentor by the setting in which [the defendant] was taped' " (People v Davis, 115 AD3d 1167,1169 [4th Dept 2014], lv denied 23 NY3d 1019 [2014], quoting People vEdmonson, 75 NY2d 672, 676-677 [1990], rearg denied 76 NY2d 846 [1990],cert denied 498 US 1001 [1990]), and we conclude that the procedure used here did notsuffer from those infirmities (see Peoplev Perri, 162 AD3d 1487, 1488 [4th Dept 2018]; see generally People v Gee, 286AD2d 62, 67-68 [4th Dept 2001], affd 99 NY2d 158 [2002], rearg denied 99NY2d 652 [2003]). In any event, even assuming, arguendo, that the identification procedure wasunduly suggestive, we conclude that any error in receiving the witness's identification testimonythat the males on the video recording "[k]inda" "[l]ooked like" and "could've been" theindividuals who committed the robbery and shooting was harmless beyond a reasonable doubt(see People v Owens, 74 NY2d 677, 678 [1989]; People v McKee, 174 AD3d 1444, 1445 [4th Dept 2019], lvdenied 34 NY3d 982 [2019]; Peoplev Leibert, 71 AD3d 513, 514 [1st Dept 2010], lv denied 15 NY3d 752[2010]).
Defendant relatedly contends that the court, after sustaining an objection outside the presenceof the jury during the trial, erred in failing to instruct the jury to disregard certain testimony of apolice detective about the witness's pretrial identification of the perpetrators. Defendant correctlyconcedes that his contention is not preserved for our review (see CPL 470.05 [2];People v DeMaio, 185 AD2d 358, 358 [2d Dept 1992], lv denied 80 NY2d 974[1992]), and we decline to exercise our power to review it as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]).
Defendant further contends that the court erred in admitting in evidence the videosurveillance footage. Contrary to defendant's contention, we conclude that "[t]he video recordingwas sufficiently authenticated with the testimony of [the building manager] who maintained thebuilding and was familiar with the operation of the building's video recording surveillancesystem" (People v Costello, 128AD3d 848, 848 [2d Dept 2015], lv denied 26 NY3d 927 [2015], deniedreconsideration 26 NY3d 1007 [2015]), as well as with the testimony of the police detectiveswho viewed the video recording immediately after the events while investigating the crime andtestified that the recording admitted at trial " 'truly and accurately represent[ed] what wasbefore the camera' " (People v Patterson, 93 NY2d 80, 84 [1999]; see People v Flowers, 166 AD3d1492, 1495 [4th Dept 2018], lv denied 32 NY3d 1125 [2018]). Contrary todefendant's suggestion, "[a]ny gaps in the chain of custody went to the weight of the evidence,not its admissibility" (People vOquendo, 152 AD3d 1220, 1221 [4th Dept 2017], lv denied 30 NY3d 982[2017]).
Defendant correctly concedes that he failed to preserve for our review his additionalcontention that the court erred in permitting the testimony of police detectives identifying him inthe video surveillance footage (see CPL 470.05 [2]; People v Sampson, 289AD2d 1022, 1023 [4th Dept 2001], lv denied 97 NY2d 733 [2002]). We decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Contrary to defendant's related contention, he has notestablished that defense counsel was ineffective for failing to object to that testimony. "A singleerror may qualify as ineffective assistance, but only when the error is sufficiently egregious andprejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152[2005]), and that is not the case here (see generally People v Graham, 174 AD3d 1486, 1488-1489 [4thDept 2019], lv denied 34 NY3d 1016 [2019]).
Defendant further contends that reversal is required because the court committed a mode ofproceedings error in handling a jury note. We reject that contention. "Where, as here, counsel hasmeaningful notice of a substantive jury note because the court has read the precise content of thenote into the record in the presence of counsel, defendant, and the jury, the court's failure todiscuss the note with counsel before recalling the jury is not a mode of proceedings error.Counsel is required to object to the court's procedure to preserve any such error for appellatereview" (People v Nealon, 26 NY3d152, 161-162 [2015]). Defense counsel failed to object to the court's procedure inresponding to the jury note, and we decline to exercise our power to review defendant'sunpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]; People v Wilson, 158 AD3d1204, 1205 [4th Dept 2018], lv denied 31 NY3d 1089 [2018]; People v Dame, 144 AD3d 1625,1625 [4th Dept 2016], lv denied 29 NY3d 948 [2017]).
[*3] Defendant also contends that the evidence is legallyinsufficient to support the conviction with respect to all counts. At the close of proof, defendantmoved for a trial order of dismissal, and the court reserved decision. There is no indication in therecord that the court ruled on defendant's motion (cf. CPL 290.10 [1]). Thus, we may notaddress defendant's contention because, "in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) andPeople v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849[1999]), we cannot deem the court's failure to rule on the . . . motion as a denialthereof" (People v Bennett, 180AD3d 1357, 1358 [4th Dept 2020] [internal quotation marks omitted]; see People v Moore, 147 AD3d1548, 1548-1549 [4th Dept 2017]; People v White, 134 AD3d 1414, 1415 [4th Dept 2015]). Wetherefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling ondefendant's motion (see Bennett, 180 AD3d at 1358; Moore, 147 AD3d at 1549;White, 134 AD3d at 1415). In light of our determination, we do not address defendant'sremaining contention. Present—Centra, J.P., Peradotto, NeMoyer and Troutman,JJ.