Opinion
2021-07287 Ind. 6675/16
12-22-2021
The People of the State of New York, respondent, v. Fred Richardson, appellant.
Lawrence E. Wright, Brooklyn, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Camille O'Hara Gillespie, and Daniel Berman of counsel), for respondent.
Lawrence E. Wright, Brooklyn, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Camille O'Hara Gillespie, and Daniel Berman of counsel), for respondent.
REINALDO E. RIVERA, J.P., VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Suzanne M. Mondo, J.), rendered June 28, 2018, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (John Hecht, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The defendant was charged with, inter alia, attempted murder in the second degree in connection with the shooting of the complainant, which occurred at a barbecue on July 2, 2016. During a New York City Police Department (hereinafter NYPD) investigation of the shooting, a detective received two anonymous tips stating, among other things, that a man named "Kilo" or "Lo" Richardson had shot the complainant, and providing his address. The detective identified the defendant as a suspect after an NYPD computer database linked the address provided to the detective to the defendant, and listed the defendant's aliases as "Lo" or "Kilo." The detective then created a photo array with photographs of the defendant and five other men. The detective showed the photo array to the complainant, and the complainant identified the defendant as the man who shot him. After the police arrested the defendant, the detective returned to the hospital and showed the complainant a single, recent photograph of the defendant, and the complainant confirmed that the photograph depicted the man who had shot him.
Prior to trial, the defendant moved, inter alia, to suppress identification testimony, and the Supreme Court held a Wade hearing (United States v Wade, 388 U.S. 218). After the hearing, the court denied that branch of the defendant's motion, determining, inter alia, that the photo array was not unduly suggestive and that the complainant was impervious to suggestion due to his familiarity with the defendant. A jury subsequently found the defendant guilty of attempted murder in the second degree. The defendant appeals.
"'When a crime has been committed by a... long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person'" (People v Carmona, 185 A.D.3d 600, 603, mod 37 N.Y.3d 1016, quoting People v Rodriguez, 79 N.Y.2d 445, 450). Thus, when "the protagonists are known to one another, suggestiveness is not a concern" and a hearing regarding suggestiveness is not required (People v Rodriguez, 79 N.Y.2d at 449 [internal quotation marks and emphasis omitted]; see People v Dixon, 85 N.Y.2d 218, 224; People v Carmona, 185 A.D.3d at 603). Here, the detective's testimony at the suppression hearing and the complainant's testimony at trial demonstrated that the complainant knew the defendant for approximately three years through mutual friends, the complainant knew the defendant by his alias "Kilo," and the defendant admitted to knowing the complainant. The Supreme Court therefore properly determined that the complainant was impervious to suggestion due to his familiarity with the defendant (see People v Carmona, 185 A.D.3d at 602; People v Locenitt, 157 A.D.3d 905, 907; People v Jackson, 151 A.D.3d 746, 746).
The Supreme Court also properly determined that the photo array was not unduly suggestive, as the participants in the photo array were sufficiently similar in appearance to the defendant such that there was little likelihood that he would be singled out for identification (see People v Bell, 188 A.D.3d 904, 905; People v Sosa-Marquez, 177 A.D.3d 1003, 1004; People v Blount, 176 A.D.3d 1092, 1093). Further, the complainant's subsequent identification of the defendant from a single photograph was merely confirmatory (see People v Benn, 177 A.D.3d 759, 761; People v Belton, 143 A.D.3d 835, 836; People v Benjamin, 2 A.D.3d 740, 741).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's identity as the shooter 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), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The defendant's contention that he was deprived of a fair trial by remarks made by the prosecutor during his closing argument is unpreserved for appellate review because defense counsel "either failed to object, or upon having his objection sustained, failed to seek further relief" (People v Robinson, 195 A.D.3d 950, 951 [internal quotation marks omitted]; see CPL 470.05[2]; People v Munnerlyn, 193 A.D.3d 981, 982). In any event, the prosecutor's comments that were not objected to were not improper, as they were either within the bounds of permissible comment, a fair response to the defendant's attack on the credibility of the People's witnesses, or a fair comment on the evidence (see People v Robinson, 195 A.D.3d at 951; People v Williams, 123 A.D.3d 1152, 1153, affd 29 N.Y.3d 84).
The defendant's contention that the Supreme Court's adverse inference charge was an insufficient sanction for the loss of surveillance footage depicting the shooting is unpreserved for appellate review because the defendant requested the adverse inference charge (see CPL 470.05[2]; People v Santiago, 168 A.D.3d 989, 989). In any event, the sanction was appropriate (see People v Handy, 20 N.Y.3d 663, 669; People v Salton, 101 A.D.3d 760, 761).
The defendant's remaining contentions are without merit.
RIVERA, J.P., BRATHWAITE NELSON, CHRISTOPHER and GENOVESI, JJ., concur.