Opinion
01-27-2016
The PEOPLE, etc., respondent, v. Raneiro CHAVEZ, appellant.
Seymour W. James, Jr., New York, N.Y. (Ellen Dille of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Ellen Dille of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered November 7, 2012, convicting him of murder in the first degree (two counts), attempted murder in the second degree, and criminal possession of a weapon in the second degree (two counts), 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 defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress lineup identification evidence (see People v. Jackson, 98 N.Y.2d 555, 558, 750 N.Y.S.2d 561, 780 N.E.2d 162 ; People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ). A review of the photograph that was taken at the lineup reveals that the lineup fillers possessed physical characteristics that were reasonably similar to those of the defendant, and that the police took reasonable steps to conceal any differences between the appearances of the lineup fillers and the defendant (see People v. Perkins, 124 A.D.3d 915, 2 N.Y.S.3d 220, lv. granted 25 N.Y.3d 1205, 16 N.Y.S.3d 528, 37 N.E.3d 1171 ; People v. Solis, 43 A.D.3d 1190, 1191, 842 N.Y.S.2d 83 ; People v. Pinckney, 220 A.D.2d 539, 632 N.Y.S.2d 203 ; People v. Stephens, 143 A.D.2d 692, 695, 532 N.Y.S.2d 928 ). A review of the photograph that was taken at the lineup also reveals that, contrary to the defendant's contention, any differences between the defendant's age and the ages of the lineup fillers were not discernable from their appearances such that the defendant was singled out (see People v. Mullings, 88 A.D.3d 745, 930 N.Y.S.2d 279 ; People v. Pinckney, 220 A.D.2d 539, 632 N.Y.S.2d 203 ; People v. Mattocks, 133 A.D.2d 89, 90, 518 N.Y.S.2d 436 ). Moreover, the defendant's contention that he was singled out by virtue of the clothing that was worn by the lineup fillers is similarly without merit, as there was no evidence adduced at the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ) which indicated that the witnesses relied on clothing in identifying the defendant (see People v. Cusimano, 48 A.D.3d 475, 851 N.Y.S.2d 629 ; People v. Tinnen, 238 A.D.2d 615, 616, 657 N.Y.S.2d 73 ; People v. Moore, 193 A.D.2d 627, 597 N.Y.S.2d 444 ).
Viewing the evidence in the light most favorable to the prosecution, we find that the evidence was sufficient to prove the defendant's guilt beyond a reasonable doubt (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ). Moreover, upon our independent review pursuant to CPL 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 sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).