Opinion
11-16-2016
The PEOPLE, etc., respondent, v. Artie JACKSON, appellant.
Michael A. Fiechter, Bellmore, N.Y., for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and W. Thomas Hughes of counsel), for respondent.
Michael A. Fiechter, Bellmore, N.Y., for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and W. Thomas Hughes of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Delligatti, J.), rendered December 18, 2014, convicting him of predatory sexual assault (three counts), rape in the first degree, attempted murder in the second degree, attempted murder in the second degree as a sexually motivated felony, robbery in the first degree (three counts), burglary in the first degree (three counts), burglary in the first degree as a sexually motivated felony (three counts), strangulation in the first degree, strangulation in the first degree as a sexually motivated felony, and sexual abuse in the first degree, 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 modified, on the law, by vacating the convictions of rape in the first degree, attempted murder in the second degree, burglary in the first degree (three counts), and strangulation in the first degree, and the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
That branch of the defendant's omnibus motion which was to suppress the showup identification evidence was properly denied. It was established at the hearing that the hospital showup identification was justified (see People v. Boswell, 288 A.D.2d 390, 733 N.Y.S.2d 624 ; People v. Gillard, 271 A.D.2d 318, 708 N.Y.S.2d 368 ; People v. Tubbs, 249 A.D.2d 936, 671 N.Y.S.2d 396 ) and was not unduly suggestive (see People v. Bartlett, 137 A.D.3d 806, 27 N.Y.S.3d 163 ; People v. Parris, 70 A.D.3d 725, 726, 893 N.Y.S.2d 287 ).
Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5 ] ). However, as the People correctly concede, the defendant's convictions of rape in the first degree, attempted murder in the second degree, burglary in the first degree (three counts), and strangulation in the first degree, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed, as they are inclusory concurrent counts of predatory sexual assault, attempted murder in the second degree as a sexually motivated felony, burglary in the first degree as a sexually motivated felony (three counts), and strangulation in the first degree as a sexually motivated felony, respectively.
The defendant's contention that he was deprived of a fair trial based on several instances of alleged prosecutorial misconduct is for the most part unpreserved for appellate review since defense counsel did not object to these remarks or questions (see CPL 470.05[2] ). In any event, the defendant was not deprived of a fair trial by any of the alleged prosecutorial misconduct (see People v. Bell, 136 A.D.3d 838, 839, 26 N.Y.S.3d 88 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).