Opinion
2018–08831 Ind.No. 115/17
11-12-2020
The PEOPLE, etc., respondent, v. Akbar MCCLENNON, appellant.
Del Atwell, East Hampton, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered June 26, 2018, convicting him of robbery in the first degree (nine counts), burglary in the first degree (four counts), robbery in the second degree (seven counts), burglary in the second degree, assault in the second degree (three counts), criminal possession of a weapon in the second degree (two counts), tampering with physical evidence, and attempted tampering with physical evidence, 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 affirmed.
On July 11, 2017, the defendant, while acting in concert with another and armed with a gun, forcibly stole property from four individuals and shot one of the individuals. The defendant was apprehended and identified by one of the complainants approximately 30 minutes after the crimes and in close proximity to the crime scene. On July 13, 2017, the defendant directed a person to search for certain evidence that had been discarded on the day of the incident.
We agree with the County Court's determination to deny that branch of the defendant's omnibus motion which was to suppress identification testimony. The People, at a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, met their burden of establishing that the showup identification procedure was not unduly suggestive (see People v. Jhagroo, 186 A.D.3d 741, 742, 127 N.Y.S.3d 294 ; People v. Williams, 143 A.D.3d 847, 848, 39 N.Y.S.3d 482 ; People v. Huerta, 141 A.D.3d 602, 603, 35 N.Y.S.3d 433 ). The showup was conducted in close spatial and temporal proximity to the crimes (see People v. Slattery, 147 A.D.3d 788, 789, 46 N.Y.S.3d 193 ; People v. Williams, 143 A.D.3d at 848, 39 N.Y.S.3d 482 ). The showup procedure was not rendered unduly suggestive because the defendant was handcuffed and in the presence of uniformed police officers and police cars at the time of the identification (see People v. Williams, 143 A.D.3d at 848, 39 N.Y.S.3d 482 ; People v. Huerta, 141 A.D.3d at 603, 35 N.Y.S.3d 433 ). As the People satisfied their burden, the burden then shifted to the defendant to prove that the procedure was unduly suggestive (see People v. Jhagroo, 186 A.D.3d at 742, 127 N.Y.S.3d 294 ), and the defendant failed to satisfy this burden.
The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 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, 621, 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 the challenged crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 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 was not against the weight of the evidence (see CPL 470.15[5] ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
We also agree with the County Court's determination to decline to give a missing witness charge (see People v. Smith, 33 N.Y.3d 454, 458–459, 104 N.Y.S.3d 572, 128 N.E.3d 649 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ). The defendant's remaining contention is without merit.
RIVERA, J.P., DILLON, MALTESE and DUFFY, JJ., concur.