Opinion
749 KA 15-01933
10-08-2021
The PEOPLE of the State of New York, Respondent, v. Michael L. BELL, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ). We reject defendant's contention that County Court erred in refusing to preclude identification testimony from an eyewitness to the crime. At a hearing, the People established that the witness had known defendant for at least nine months prior to the incident, and thus they established that the identification procedure was " ‘merely confirmatory’ " ( People v. Rodriguez , 79 N.Y.2d 445, 452, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ; see People v. Carter , 107 A.D.3d 1570, 1572, 969 N.Y.S.2d 274 [4th Dept. 2013], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 801, 16 N.E.3d 1281 [2014] ). We decline to disturb the court's credibility determinations with respect to the testimony at the hearing (see generally People v. Donaldson , 35 A.D.3d 1242, 1243, 826 N.Y.S.2d 540 [4th Dept. 2006], lv denied 8 N.Y.3d 984, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] ; People v. Jordan , 242 A.D.2d 254, 255, 661 N.Y.S.2d 228 [1st Dept. 1997], lv denied 91 N.Y.2d 875, 668 N.Y.S.2d 573, 691 N.E.2d 645 [1997] ).
The court did not abuse its discretion in denying defendant's request for a missing witness charge. Defendant failed to establish that the witness at issue could "be expected to testify favorably to the [People]" ( People v. Gonzalez , 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ), inasmuch as the witness initially gave a statement to the police that was favorable to the People, i.e., identifying defendant as the perpetrator, but the witness later gave a statement to a defense investigator that he could not identify defendant as the perpetrator (see generally People v. Vigliotti , 270 A.D.2d 904, 905, 706 N.Y.S.2d 544 [4th Dept. 2000], lv denied 95 N.Y.2d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426 [2000], reconsideration denied 95 N.Y.2d 970, 722 N.Y.S.2d 488, 745 N.E.2d 409 [2000] ; People v. Congilaro , 159 A.D.2d 964, 965, 552 N.Y.S.2d 775 [4th Dept. 1990] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), 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 [1987] ).
We have examined defendant's remaining contentions on appeal and conclude that none warrants reversal or modification of the judgment.