Opinion
KA 00-02951
May 2, 2003.
Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered November 15, 2000, convicting defendant after a jury trial of, inter alia, grand larceny in the fourth degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of grand larceny in the fourth degree (Penal Law 155.30) and criminal possession of stolen property in the fourth degree (165.45 [2]). The victim was held up at gun point and robbed of her purse and, six days later, she received a telephone call from an employee at Blockbuster Video informing her that videos had been rented using her video rental card. The victim had kept the video rental card in her purse. The employee asked the victim if she wished to view the store's surveillance videotape, and the victim did so with the agreement of the police. A few days later, the victim identified defendant from a photo array as the person who had robbed her. At trial, defendant testified that he did not rob the victim, but he admitted that he had purchased a stolen video rental card from an acquaintance. He also admitted that he was the person depicted in the Blockbuster Video surveillance videotape.
Defendant contends that County Court erred in denying his motion to suppress the victim's in-court identification of him on the ground that the viewing of the surveillance videotape by the victim tainted her subsequent identification of defendant from the photo array. We reject that contention. The People did not contend before the suppression court that the Blockbuster Video employee was not acting as a police agent in showing the videotape to the victim, and thus we do not address that issue on appeal ( cf. People v. Stephenson, 202 A.D.2d 280, 281, lv denied 83 N.Y.2d 915). Even assuming that the employee was an agent of the police, however, we agree with the suppression court upon viewing the videotape that the quality of the videotape was sufficiently poor that it could not be deemed "`so unnecessarily suggestive as to create a substantial likelihood of misidentification'" ( People v. Gee, 286 A.D.2d 62, 67, affd 99 N.Y.2d 158; see generally People v. Edmonson, 75 N.Y.2d 672, 677-678, rearg denied 76 N.Y.2d 846, cert denied 498 U.S. 1001; People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833).
Further, the court properly sentenced defendant to a consecutive term of imprisonment ( see People v. Salcedo, 92 N.Y.2d 1019, 1021). The record supports the court's determination that the offenses were committed through distinct acts, not a single act, and thus the court acted within its discretion in imposing a consecutive sentence ( see People v. Day, 73 N.Y.2d 208, 211-213).