Opinion
02-14-2024
The PEOPLE, etc., respondent, v. Ralph RODRIGUEZ, appellant.
Twyla Carter, New York, NY (Amy Donner of counsel), for appellant, and appellant pro se. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Amanda Ianuzzi of counsel), for respondent.
Twyla Carter, New York, NY (Amy Donner of counsel), for appellant, and appellant pro se.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Amanda Ianuzzi of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie Leach, J.), rendered November 16, 2016, convicting him of robbery in the second degree, criminal possession of a weapon in the third degree, grand larceny in the fourth degree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Steven W. Paynter, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
[1] Contrary to the defendant’s contention, raised in his pro se supplemental brief, the Supreme Court properly denied his motion to dismiss the indictment on the ground that he was deprived of his right to a speedy trial pursuant to CPL 30.30(1)(a). The total time chargeable to the People was within the permitted six calendar months (see id. § 30.30[1][a]; [4]).
[2, 3] The Supreme Court also properly denied that branch of the defendant’s omnibus motion which was to suppress identification testimony. The defendant was identified by the complainant during a showup procedure conducted near the crime scene. "Showup procedures, although generally disfavored, are permissible where employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification" (People v. Castro, 149 A.D.3d 862, 868, 52 N.Y.S.3d 385; see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d .346, 571 N.E.2d 654). Here, the evidence adduced at the suppression hearing established that the showup procedure took place approximately six to eight minutes after the crime occurred and approximately four blocks away from the crime scene (see People v. Castro, 149 A.D.3d at 863, 52 N.Y.S.3d 385; People v. Williams, 143 A.D.3d 847, 848, 39 N.Y.S.3d 482). Contrary to the defendant’s contention, under the facts presented here, the showup procedure was not rendered unduly suggestive because the defendant was handcuffed and in the presence of uniformed police officers and police cars (see People v. Williams, 143 A.D.3d at 848, 39 N.Y.S.3d 482; People v. Charles, 110 A.D.3d 1094, 1096, 973 N.Y.S.2d 763) or because the identification was made in the vicinity of recovered property (see People v. Baez, 175 A.D.3d 553, 554, 107 N.Y.S.3d 385; People v. Fox, 11 A.D.3d 709, 709, 784 N.Y.S.2d 565).
[4, 5] Contrary to the defendant’s contention raised in his pro se supplemental brief, the Supreme Court did riot improperly curtail his cross-examination of a police witness. The nature and extent of cross-examination is subject to the sound discretion of the trial judge (see People v. Soto, 177 A.D.3d 781, 782, 114 N.Y.S.3d 360). Here; the court properly permitted counsel for the defendant to impeach the police witness with a prior inconsistent statement, then properly sustained objections to further questioning on the same issue (see People v. Wright, 160 A.D.3d 667, 670, 74 N.Y.S.3d 302).
[6] Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent, review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Hines, 219 A.D.3d 506, 507, 195 N.Y.S.3d 18). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
[7] The defendant’s contention raised in his pro se supplemental brief that he was deprived of the effective assistance of counsel is based, in part, oh matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457). Since the defendant’s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Farrow, 216 A.D.3d 996, 999, 189 N.Y.S.3d 267; People v. Yancey, 204 A.D.3d 1044, 1045, 165 N.Y.S.3d 359).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). The remaining contentions, raised in the defendant’s pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.
DUFFY, J.P., MILLER, WOOTEN and LOVE, JJ., concur.