Opinion
1043 KA 17-00344
02-10-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DAVID L. DESMOND, DEFENDANT-APPELLANT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND OGDEN, JJ.
Appeal from a judgment of the Monroe County Court (Christopher S. Ciaccio, J.), rendered October 19, 2016. The judgment convicted defendant upon a jury verdict of burglary in the second degree and robbery in the third degree.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2]) and robbery in the third degree (§ 160.05), defendant contends that the showup identification procedures involving the two victims were unduly suggestive and therefore County Court erred in refusing to suppress identification evidence. To the extent that it is preserved for our review (see CPL 470.05 [2]; People v Ortiz, 90 N.Y.2d 533, 536-537 [1997]; People v Johnson, 192 A.D.3d 1612, 1613 [4th Dept 2021], lv denied 38 N.Y.3d 1071 [2022]), we reject defendant's contention. "The showup procedure[s] w[ere] reasonable under the circumstances because [they were] conducted in geographic and temporal proximity to the crime" (People v Nance, 132 A.D.3d 1389, 1390 [4th Dept 2015], lv denied 26 N.Y.3d 1091 [2015] [internal quotation marks omitted]; see People v Johnson, 198 A.D.3d 1320, 1321 [4th Dept 2021]; People v Santiago, 83 A.D.3d 1471, 1471 [4th Dept 2011], lv denied 17 N.Y.3d 800 [2011]). Moreover, the visual showup procedure involving one of the victims was not rendered unduly suggestive by the fact that defendant was in handcuffs and was illuminated-in the middle of the night-by the police vehicle's high beams (see People v Crittenden, 179 A.D.3d 1543, 1544 [4th Dept 2020], lv denied 35 N.Y.3d 969 [2020]; Nance, 132 A.D.3d at 1390; cf. People v Cruz, 129 A.D.3d 119, 123 [1st Dept 2015], lv denied 26 N.Y.3d 971 [2015]).
We also conclude that the voice identification procedure involving the other victim was not unduly suggestive. A voice identification is governed by the same due process guarantees as other identification procedures (see People v Greco, 230 A.D.2d 23, 30 [4th Dept 1997], lv denied 90 N.Y.2d 858 [1997], reconsideration denied 90 N.Y.2d 940 [1997]; People v Shepard, 162 A.D.2d 226, 226 [1st Dept 1990], lv denied 76 N.Y.2d 944 [1990]). Here, the police did not "convey[ ] their beliefs or otherwise suggest[ ]... defendant's guilt to the" victim (People v Collins, 60 N.Y.2d 214, 219 [1983]). Although the victim's degree of confidence in his identification of defendant as the intruder increased as defendant continued to talk, until the victim became "definitely sure," at no time did the police pressure the victim into making an identification. Based on the totality of the circumstances, we conclude that the voice identification procedure was not unduly suggestive.
Defendant further contends that the evidence is legally insufficient to support the conviction and that the matter must be remitted for a ruling on his motion for a trial order of dismissal, with respect to the second count of the indictment, i.e., the burglary in the second degree count of which he was convicted. At the close of the People's case, defendant moved for a trial order of dismissal, arguing, inter alia, that the People failed to make a prima facie case with respect to the second count of the indictment. There is no indication in the record that the court ruled on that part of defendant's motion. We lack the power to review defendant's contention that the evidence is legally insufficient to support the conviction of burglary in the second degree because, "in accordance with People v Concepcion (17 N.Y.3d 192, 197-198 [2011]) and People v LaFontaine (92 N.Y.2d 470, 474 [1998], rearg denied 93 N.Y.2d 849 [1999]), we cannot deem the court's failure to rule on the... motion as a denial thereof" (People v Moore, 147 A.D.3d 1548, 1548 [4th Dept 2017] [internal quotation marks omitted]; see People v White, 134 A.D.3d 1414, 1415 [4th Dept 2015]; see generally People v Spratley, 96 A.D.3d 1420, 1421 [4th Dept 2012]). We therefore hold the case, reserve decision, and remit the matter to County Court for a ruling on that part of the motion (see Moore, 147 A.D.3d at 1548; White, 134 A.D.3d at 1415). In light of our determination, we do not address defendant's remaining contentions.