Opinion
874 KA 15–00915
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Timothy R. JOHNSON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of assault in the first degree ( Penal Law § 120.10[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ), defendant contends that County Court erred in refusing to suppress identification testimony arising from three separate identification procedures, specifically two showups and a photo array. We reject that contention.
The first showup identification, which occurred during the course of the ongoing investigation, was conducted within 10 minutes of the crime and only a few blocks from the scene of the crime, and "the fact that [defendant] was handcuffed and standing next to a police officer during the showup identification procedure does not render the procedure unduly suggestive as a matter of law" ( People v. Thompson, 132 A.D.3d 1364, 1365, 17 N.Y.S.3d 820 [4th Dept. 2015], lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ; see generally People v. Robinson, 8 A.D.3d 1028, 1029, 778 N.Y.S.2d 808 [4th Dept. 2004], affd 5 N.Y.3d 738, 800 N.Y.S.2d 369, 833 N.E.2d 704 [2005], cert denied 546 U.S. 988, 126 S.Ct. 573, 163 L.Ed.2d 479 [2005] ; People v. Walker, 155 A.D.3d 1685, 1686, 64 N.Y.S.3d 839 [4th Dept. 2017], lv denied 30 N.Y.3d 1109, 77 N.Y.S.3d 8, 101 N.E.3d 394 [2018] ). The second showup identification, which took place at the scene of the crime, occurred within 20 to 25 minutes of the crime (see People v. Ponder, 42 A.D.3d 880, 881, 838 N.Y.S.2d 767 [4th Dept. 2007], lv denied 9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899 [2007] ) and was also conducted "in the course of a ‘continuous, ongoing investigation’ " ( People v. Lewis, 97 A.D.3d 1097, 1098, 947 N.Y.S.2d 745 [4th Dept. 2012], lv denied 19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012], quoting People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] ). Moreover, "the fact that the [witness] viewed defendant after he got out of a patrol car did not render th[at] procedure unduly suggestive" ( People v. Owens, 161 A.D.3d 1567, 1568, 77 N.Y.S.3d 257 [4th Dept. 2018] ; see also Robinson, 8 A.D.3d at 1029, 778 N.Y.S.2d 808 ). We thus conclude that "the showup[s were] reasonable under the circumstances-that is, ... conducted in close geographic and temporal proximity to the crime-and the procedure[s] used [were] not unduly suggestive" ( Brisco, 99 N.Y.2d at 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 ).
Defendant contends that the photo array presented to the victim at the hospital was unduly suggestive because the victim was not shown an array without defendant's photograph in it. We reject that contention (see People v. Peterkin, 153 A.D.3d 1568, 1569, 61 N.Y.S.3d 398 [4th Dept. 2017] ). Defendant's remaining contentions concerning the identification procedures are raised for the first time on appeal and thus are not preserved for our review (see e.g. People v. Bakerx, 114 A.D.3d 1244, 1247, 980 N.Y.S.2d 210 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ; Lewis, 97 A.D.3d at 1097–1098, 947 N.Y.S.2d 745 ; People v. Santiago, 83 A.D.3d 1471, 1471, 919 N.Y.S.2d 750 [4th Dept. 2011], lv denied 17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103 [2011] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant further contends that the court erred in permitting witnesses to testify at trial about the identification procedures. Inasmuch as no objection was made to that testimony, defendant's contention is not preserved for our review (see People v. Marks, 182 A.D.2d 1122, 1122–1123, 583 N.Y.S.2d 331 [4th Dept. 1992] ; People v. Battee, 94 A.D.2d 935, 936, 463 N.Y.S.2d 954 [4th Dept. 1983] ). In any event, although testimony concerning a third-party's prior identification of a defendant is generally inadmissible (see People v. Buie, 86 N.Y.2d 501, 510, 634 N.Y.S.2d 415, 658 N.E.2d 192 [1995] ; see also People v. Patterson, 93 N.Y.2d 80, 82, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] ; but see CPL 60.25[1][a] ), we conclude that the testimony of a police officer concerning another citizen's identification of defendant during the second showup identification "served to ‘complete the narrative of events leading up to defendant's [arrest]’ " ( People v. Corchado, 299 A.D.2d 843, 844, 749 N.Y.S.2d 814 [4th Dept. 2002], lv denied 99 N.Y.2d 581, 755 N.Y.S.2d 716, 785 N.E.2d 738 [2003] ; see People v. Cruz, 214 A.D.2d 952, 952, 626 N.Y.S.2d 920 [4th Dept. 1995], lv denied 86 N.Y.2d 793, 632 N.Y.S.2d 506, 656 N.E.2d 605 [1995] ). Moreover, defense counsel himself elicited the testimony concerning the first showup procedure.
We reject defendant's contention that counsel was ineffective in failing to object to the testimony about the second showup identification and in eliciting testimony concerning the first showup identification. Defense counsel's entire theory at trial was that the people who identified defendant as the perpetrator did so based solely on his clothes, which witnesses admitted were similar to clothes commonly worn by others in the neighborhood. Thus, the improper testimony did not affect the overall defense strategy. Viewing the evidence, the law and the circumstances of the case in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Contrary to defendant's further contention, viewing the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Finally, the sentence is not unduly harsh or severe.