Opinion
KA 02-00876.
December 31, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Sirkin, J.), entered January 25, 2002, convicting defendant after a jury trial of tampering with a witness in the third degree and intimidating a victim or witness in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, 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 robbery in the first degree (Penal Law § 160.15) (appeal No. 2) and from a second judgment convicting him following the same jury trial of tampering with a witness in the third degree (§ 215.11 [1]) and intimidating a victim or witness in the third degree (§ 215.15 [1]) (appeal No. 1). Contrary to the contention of defendant, the identification procedure was not unduly suggestive ( see generally People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833). All six subjects in the photographic array were approximately the same age and weight, had similar coloring and hairstyles, and were wearing eyeglasses ( see id. at 336). We conclude that no substantial likelihood that defendant would be singled out for identification was created by the facts that his eyeglasses shone with a brighter reflection than those of the other subjects ( see generally People v. Sawyer, 253 A.D.2d 501, lv denied 92 N.Y.2d 930; People v. Robert, 184 A.D.2d 597, 597-598, lv denied 80 N.Y.2d 929, 933), that defendant wore a patterned shirt while the other subjects did not ( see People v. Stackhouse, 201 A.D.2d 686, lv denied 84 N.Y.2d 833), or that some of the other subjects wore eyeglasses larger than his; in fact, at least two of the other subjects wore eyeglasses of comparable size to defendant's ( see generally People v. Parker, 257 A.D.2d 693, 694, lv denied 93 N.Y.2d 1015, 1024). In addition, the police officer's statement to the victim that the perpetrator's photograph may or may not be in the array did not render the procedure unduly suggestive ( see People v. Wooley, 249 A.D.2d 46, 49, lv denied 92 N.Y.2d 863).
We also reject the contention of defendant that the judgment of conviction for tampering with a witness and intimidating a victim or witness must be reversed on the ground that the proof established more than one threat against the victim, thus making it possible that the jury convicted him of an unindicted act or that different jury members convicted him based on different acts ( cf. People v. Greaves, 2 A.D.3d 979; People v. Burns, 303 A.D.2d 1032, 1033; People v. George, 255 A.D.2d 881). The evidence at trial establishes that defendant spoke with the victim only once by telephone and during that telephone call threatened the victim only once in a manner that instilled in her a fear that he would cause physical injury to her ( see Penal Law § 215.11; § 215.15 [1]). Defendant's attempt to characterize a second telephone call made by a woman named "Keesha" as a second criminal act committed by defendant is unavailing because the record does not establish that Keesha threatened the victim or otherwise instilled fear in her. In fact, the victim testified that Keesha told her that nothing would happen to her whether she chose to testify against defendant or not. Moreover, contrary to the contention of defendant that he "directed" that second telephone call to the victim, his own testimony establishes that he did not know about it before it occurred and that he questioned Keesha's decision to make the telephone call after he learned of it.
Finally, the sentence is neither unduly harsh nor severe.