Opinion
10-18-2016
The PEOPLE of the State of New York, Respondent, v. Larry McLEAN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Larry McLean, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Larry McLean, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.
FRIEDMAN, J.P., ANDRIAS, SAXE, FEINMAN, KAHN, JJ.
Judgment, Supreme Court, New York County (Analisa Torres, J.), rendered January 7, 2013, convicting defendant, after a jury trial, of eight counts of robbery in the first degree, four counts of robbery in the second degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a persistent violent felony offender, to 14 concurrent terms of 25 years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress a showup identification. The showup, which was conducted in close spatial and temporal proximity to the crime, was “part of an unbroken chain of fast-paced events” (People v. Vincenty, 138 A.D.3d 428, 429, 28 N.Y.S.3d 686 [1st Dept.2016] ), including the arrival, at the location where defendant was being detained, of a police car transporting three witnesses. The circumstances, viewed collectively, were not unduly suggestive (see e.g. People v. Gatling, 38 A.D.3d 239, 831 N.Y.S.2d 157 [1st Dept.2007], lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ). Although the better practice, when feasible, is not to conduct a showup before multiple witnesses, or, if possible, to instruct the witnesses not to say anything until afterwards and question them separately, the group identification here was tolerable in the interest of prompt identification, and there is no evidence that the victims influenced each other's identifications (see People v. Love, 57 N.Y.2d 1023, 1024, 457 N.Y.S.2d 474, 443 N.E.2d 948 [1982] ; People v. Wilburn, 40 A.D.3d 508, 837 N.Y.S.2d 71 [1st Dept.2007], lv. denied 9 N.Y.3d 883, 842 N.Y.S.2d 795, 874 N.E.2d 762 [2007] ).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. Ample evidence, including video surveillance, established that defendant was not a hapless bystander forced to become a getaway driver, but an active participant in the robbery.
Defendant's challenge to the legality of the use of his third-degree weapon possession conviction as a violent predicate felony is unavailing (see People v. Smith [McGhee], 27 N.Y.3d 652, 670, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ). Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Defendant's remaining pro se claims are without merit.