Opinion
790 KA 20-00373
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Branchaunn RANGE, Defendant-Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK M. HARNSBERGER OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK M. HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of burglary in the first degree ( Penal Law § 140.30 [4] ), robbery in the first degree (§ 160.15 [4]), and robbery in the second degree (§ 160.10 [1]), defendant contends that County Court erred in determining following a pretrial hearing that the responding police officer had an independent basis for his in-court identification of defendant. We reject that contention. "[I]t is well-settled that even when an identification is the product of a suggestive pretrial identification procedure, a witness will nonetheless be permitted to identify a defendant in court if that identification is based upon an independent source" ( People v. Campbell , 200 A.D.2d 624, 625, 606 N.Y.S.2d 736 [2d Dept. 1994], lv denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299 [1994] ; see People v. Woody , 160 A.D.3d 1362, 1363, 76 N.Y.S.3d 297 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ). Factors to consider in determining whether a witness has a sufficiently reliable independent basis for an identification include "the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation" ( Neil v. Biggers , 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 [1972] ; see People v. Lopez , 85 A.D.3d 1641, 1641, 924 N.Y.S.2d 871 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ). Here, the officer's testimony established that he had an opportunity to view defendant during the course of the crime, i.e., when the officer was face to face with defendant while they were engaged in a physical altercation in a well-lit stairwell (see People v. Gray , 135 A.D.3d 874, 874, 23 N.Y.S.3d 373 [2d Dept. 2016], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ), and that the officer's attention was on defendant during the entire altercation (see People v. Mallory , 126 A.D.2d 750, 751, 511 N.Y.S.2d 139 [2d Dept. 1987] ; People v. Magee , 122 A.D.2d 227, 228, 504 N.Y.S.2d 758 [2d Dept. 1986] ). The officer accurately described defendant's gender, race, and clothing, and accurately noted that defendant was wearing an ankle monitor (see Gray , 135 A.D.3d at 874, 23 N.Y.S.3d 373 ; People v. Small , 110 A.D.3d 1106, 1106-1107, 973 N.Y.S.2d 796 [2d Dept. 2013], lv denied 22 N.Y.3d 1043, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ). Although the officer viewed defendant for a matter of only several seconds, we conclude that, under these circumstances, the court's determination is "supported by ‘sufficient evidence’ in the record" ( Lopez , 85 A.D.3d at 1642, 924 N.Y.S.2d 871, quoting People v. Yukl , 25 N.Y.2d 585, 588, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ; see People v. Tindale , 295 A.D.2d 987, 988, 743 N.Y.S.2d 767 [4th Dept. 2002], lv denied 98 N.Y.2d 714, 749 N.Y.S.2d 11, 778 N.E.2d 562 [2002]). In any event, even assuming, arguendo, that the court erred in determining that there was an independent basis for the officer's identification of defendant, we conclude that any error was harmless in light of the overwhelming evidence of defendant's guilt and the lack of any reasonable possibility that the error might have contributed to the conviction (see generally People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We have reviewed defendant's remaining contention and conclude that it is without merit.
Finally, we note that the uniform sentence and commitment form erroneously reflects that defendant was sentenced on the count of robbery in the second degree to one year in jail with no postrelease supervision, which would be an illegal sentence (see Penal Law §§ 70.04 [3] [b] ; 160.10), whereas the sentencing minutes reflect that defendant was in fact sentenced on that count to seven years in prison with five years of postrelease supervision. The uniform sentence and commitment form must therefore be amended to correct that error (see generally People v. McCoy , 174 A.D.3d 1379, 1382, 106 N.Y.S.3d 447 [4th Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 653, 137 N.E.3d 23 [2019], reconsideration denied 35 N.Y.3d 994, 125 N.Y.S.3d 634, 149 N.E.3d 395 [2020] ; People v. Correa , 145 A.D.3d 1640, 1641, 44 N.Y.S.3d 834 [4th Dept. 2016] ; People v. Owens , 51 A.D.3d 1369, 1372-1373, 856 N.Y.S.2d 793 [4th Dept. 2008], lv denied 11 N.Y.3d 740, 864 N.Y.S.2d 398, 894 N.E.2d 662 [2008] ).