Opinion
2014-06-18
The PEOPLE, etc., respondent, v. Weldon J. ERVIN, appellant.
Mark Diamond, New York, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and Monica M.C. Leiter of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and Monica M.C. Leiter of counsel), for respondent.
RANDALL T. ENG, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Ayres, J.), rendered April 30, 2012, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Donnino, J.), of the suppression of identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied the suppression of the showup identifications made by two witnesses near the scene of the crime. Showup identifications are permissible, even in the absence of exigent circumstances, where they are conducted in close geographic and temporal proximity to the crime, and the procedure used was not unduly suggestive ( see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611;People v. Sain, 111 A.D.3d 964, 976 N.Y.S.2d 107;People v. Dunbar, 104 A.D.3d 198, 217, 958 N.Y.S.2d 764,lv. granted21 N.Y.3d 942, 968 N.Y.S.2d 4, 990 N.E.2d 138;People v. Cuesta, 103 A.D.3d 913, 915, 959 N.Y.S.2d 744). Here, the showup identifications took place approximately 25 minutes after the commission of the crime and within blocks of the crime scene ( see People v. Sain, 111 A.D.3d 964, 976 N.Y.S.2d 107;People v. Cuesta, 103 A.D.3d at 915, 959 N.Y.S.2d 744;People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302;People v. Berry, 50 A.D.3d 1047, 1048, 856 N.Y.S.2d 228). The People met their initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness in the showup identifications through the testimony of the officer who transported the witnesses to the showup, and provided a detailed account of the physical circumstances of the procedure ( see People v. Charles, 110 A.D.3d 1094, 973 N.Y.S.2d 763;People v. Calero, 105 A.D.3d 864, 865, 962 N.Y.S.2d 665;People v. Cuesta, 103 A.D.3d at 915, 959 N.Y.S.2d 744;People v. Gonzalez, 57 A.D.3d at 561, 868 N.Y.S.2d 302). The burden thus shifted to the defendant to prove that the procedure was unduly suggestive ( see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;People v. Gonzalez, 57 A.D.3d at 561, 868 N.Y.S.2d 302), which the defendant failed to establish. The fact that the witnesses were told prior to the showup that two individuals who matched their descriptions of the perpetrators had been detained did not render the procedure unduly suggestive ( see People v. Morgan, 302 A.D.2d 983, 984, 755 N.Y.S.2d 538).
The defendant's contention that the evidence was legally insufficient to support his conviction of attempted robbery in the second degree is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, 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 guilt of attempted robbery in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury'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 of attempted robbery in the second degree 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 a fair trial by certain comments made by the prosecutor on summation is unpreserved for appellate review since he failed to object to the comments he now challenges ( seeCPL 470.05[2]; People v. Jorgensen, 113 A.D.3d 793, 978 N.Y.S.2d 361;People v. Beverly, 112 A.D.3d 843, 976 N.Y.S.2d 666). In any event, the challenged remarks were proper because they were a fair response to comments made by defense counsel on summation, did not denigrate the defense, and were within the bounds of appropriate argument based on the evidence ( see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Izurieta, 116 A.D.3d 881, 983 N.Y.S.2d 433;People v. Nelson, 112 A.D.3d 744, 976 N.Y.S.2d 224). Further, defense counsel's failure to object to the subject comments did not constitute ineffective assistance of counsel ( see People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611;People v. McGowan, 111 A.D.3d 850, 975 N.Y.S.2d 147;People v. Brown, 106 A.D.3d 754, 963 N.Y.S.2d 409;People v. Friel, 53 A.D.3d 667, 668, 862 N.Y.S.2d 105).
The defendant's contention that the Supreme Court failed to comply with the mandates of CPL 400.21 before sentencing him as a second felony offender is unpreserved for appellate review ( see People v. Gilbert, 114 A.D.3d 874, 980 N.Y.S.2d 789;People v. Sanabria, 110 A.D.3d 1010, 973 N.Y.S.2d 326;People v. Winslow, 100 A.D.3d 1031, 954 N.Y.S.2d 625). In any event, the defendant's contention is without merit, as the Supreme Court substantially complied with the requirements of CPL 400.21 ( see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338;People v. Gilbert, 114 A.D.3d 874, 980 N.Y.S.2d 789;People v. Sanabria, 110 A.D.3d 1010, 973 N.Y.S.2d 326;People v. Winslow, 100 A.D.3d 1031, 954 N.Y.S.2d 625).