Opinion
2015-04-08
The PEOPLE, etc., respondent, v. Jin ZHENG, appellant.
Joyce C. London, P.C., New York, N.Y. (Michael A. Young of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Joyce C. London, P.C., New York, N.Y. (Michael A. Young of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Guidice, J.), rendered September 18, 2012, convicting him of assault in the first degree, gang assault in the first degree, and assault in the second degree, 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.
Contrary to the defendant's contention, the showup identification procedure was conducted in close geographic and temporal proximity to the crime, and it was not unduly suggestive ( see People v. Howard, 22 N.Y.3d 388, 402, 981 N.Y.S.2d 310, 4 N.E.3d 320; People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302). The defendant's contention that the trial testimony of a female witness established that the showup identification was impermissibly suggestive is unpreserved for appellate review, since the defendant never moved to reopen the suppression hearing ( see People v. Scott, 85 A.D.3d 827, 924 N.Y.S.2d 836). In any event, the defendant's contention is without merit.
The defendant's contention that the evidence was legally insufficient to support his conviction of assault in the first degree is unpreserved for appellate review ( seeCPL 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, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to prove the defendant's guilt of assault in the first degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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, 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 find that the verdict of guilt of that crime was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that the Supreme Court erred when it admitted into evidence the statements made by two of his codefendants while they were being searched by the police is unpreserved for appellate review ( see People v. Jenkins, 93 A.D.3d 861, 940 N.Y.S.2d 874). In any event, while the statements should not have been admitted under the coconspirator exception to the hearsay rule ( see People v. Caban, 5 N.Y.3d 143, 148, 800 N.Y.S.2d 70, 833 N.E.2d 213), the error was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675), and there is no evidence in the record to support the defendant's contention that the Supreme Court exhibited bias that affected the sentence imposed.
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.