Opinion
2014-12-17
The PEOPLE, etc., respondent, v. Zavion BROWN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered July 17, 2012, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's challenge to the legal sufficiency of the evidence based on the People's failure to establish the defendant's identity beyond a reasonable doubt is preserved for appellate review ( see People v. Finch, 23 N.Y.3d 408, 991 N.Y.S.2d 552, 15 N.E.3d 307). However, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity as one of the perpetrators beyond a reasonable doubt. Moreover, upon the exercise of our factual review power ( seeCPL 470.15 [5] ), 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).
“The credibility determinations of a hearing court following a suppression hearing are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v. Hobson, 111 A.D.3d 958, 959, 975 N.Y.S.2d 682; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Here, upon according deference to the hearing court's findings of credibility, we conclude that the record supports the court's determination that the station-house identification at issue was accidental and not the result of police misconduct or questionable police procedures ( see People v. Rodriguez, 98 A.D.3d 530, 531–532, 949 N.Y.S.2d 441; People v. Gomez, 60 A.D.3d 782, 783, 874 N.Y.S.2d 582; People v. Nunez, 216 A.D.2d 494, 495, 628 N.Y.S.2d 559). Thus, the court did not err in denying suppression.
Contrary to the defendant's contention, the court did in fact reopen a Wade hearing ( see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), and thereafter made its determination based upon a record that included the proceedings conducted after the Wade hearing was reopened. Moreover, the defendant did not establish that defense counsel was ineffective for failing to call any witness at the reopened hearing, as he has not shown the absence of strategic or other legitimate explanations for the alleged failure ( see People v. Barboni, 21 N.Y.3d 393, 405–406, 971 N.Y.S.2d 729, 994 N.E.2d 820).
The defendant's contention that the trial court discharged potential jurors based upon hardship without conducting a sufficient inquiry is unpreserved for appellate review ( see People v. Johnson, 116 A.D.3d 883, 983 N.Y.S.2d 447; People v. Harris, 115 A.D.3d 761, 762, 981 N.Y.S.2d 451; People v. King, 110 A.D.3d 1005, 1006, 973 N.Y.S.2d 353, lv. granted23 N.Y.3d 1022, 992 N.Y.S.2d 804, 16 N.E.3d 1284; People v. Casanova, 62 A.D.3d 88, 90–92, 875 N.Y.S.2d 31) and, in any event, is without merit ( see People v. Johnson, 116 A.D.3d 883, 983 N.Y.S.2d 447; People v. Harris, 115 A.D.3d at 762, 981 N.Y.S.2d 451; People v. King, 110 A.D.3d at 1006, 973 N.Y.S.2d 353).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).