Opinion
06-07-2017
The PEOPLE, etc., respondent, v. Michael CHIRSE, appellant.
Seymour James, New York, NY (Lorca Morello of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Claibourne Henry of counsel), for respondent.
Seymour James, New York, NY (Lorca Morello of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Claibourne Henry of counsel), for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered February 14, 2013, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Ingram, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence. The failure of the police to take a photograph of the lineup created a presumption of suggestiveness (see People v. Brennan, 222 A.D.2d 445, 635 N.Y.S.2d 39 ; People v. Simmons, 158 A.D.2d 950, 950, 551 N.Y.S.2d 110 ). However, the People rebutted the presumption of suggestiveness by other testimony and evidence including photographs of four fillers taken on the day of the lineup and testimony as to the physical attributes of and clothing worn by the participants. This evidence demonstrated that the procedures used were not impermissibly suggestive (see People v. Pitts, 46 A.D.3d 923, 923, 849 N.Y.S.2d 91 ; People v. Brennan, 222 A.D.2d at 445, 635 N.Y.S.2d 39 ; People v. Simmons, 158 A.D.2d at 950, 551 N.Y.S.2d 110 ). Further, contrary to the defendant's contention, the People did present evidence at the suppression hearing that the identifying witness, a police officer, viewed the defendant's face on the day of the robbery. Moreover, the defendant's contention that the lineup procedure may have been tainted by communications between the identifying witness and his fellow officers prior to the lineup is purely speculative (see People v. Chipp, 75 N.Y.2d 327, 339, 553 N.Y.S.2d 72, 552 N.E.2d 608 ). The defendant's remaining contentions with respect to the suppression determination are without merit.
The defendant contends that the conviction was against the weight of the evidence. 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, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder'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. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). 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 ).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit (see Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Counsel is not ineffective for failing to make a motion or argument that had little or no chance of success (see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Cromwell, 99 A.D.3d 1017, 1017, 952 N.Y.S.2d 302 ; People v. Brown, 92 A.D.3d 455, 456, 937 N.Y.S.2d 230 ; People v. Mack, 91 A.D.3d 794, 795, 936 N.Y.S.2d 320 ).