Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Bryan BASSETT, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10[2][b] ). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is 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). “Although a different result would not have been unreasonable, the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded” ( People v. Orta, 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812, lv. denied4 N.Y.3d 801, 795 N.Y.S.2d 176, 828 N.E.2d 92).
We reject defendant's further contention that the showup identification procedure resulting in identifications made by two witnesses was unduly suggestive and that County Court erred in refusing to suppress the identifications. Prompt showup identification procedures that are conducted in geographic and temporal proximity to the crime “are not ‘presumptively infirm,’ and in fact have generally been allowed” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337, quoting People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654). Here, the showup identification procedure was reasonable because it was conducted within 200 yards of the scene of the crime, within 20 minutes of the commission of the crime, and in the course of a continuous, ongoing investigation ( see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611; People v. Lewis, 97 A.D.3d 1097, 1098, 947 N.Y.S.2d 745, lv. denied19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820). Moreover, the two witnesses were placed in different police vehicles and remained apart throughout the showup identification procedure. Thus, “ ‘it cannot be said that the [witnesses] were in such proximity while viewing [defendant] that there was an increased likelihood that if one of them made an identification the other[ ] would concur’ ” (People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718, lv. denied17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106).
Defendant's contention that he was denied a fair trial based on the prosecutor's improper questions on cross-examination of defendant and improper comments during summation is not preserved for our review inasmuch as defendant failed to object to those instances of alleged misconduct ( seeCPL 470.05 [2] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a]; see also People v. Washington, 89 A.D.3d 1516, 1516–1517, 933 N.Y.S.2d 499, lv. denied18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.