Opinion
11-03-2016
The PEOPLE of the State of New York, Respondent, v. Jerry W. COLEMAN, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Teresa C. Mulliken, Harpersfield, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: McCARTHY, J.P., LYNCH, ROSE, DEVINE and MULVEY, JJ.
ROSE, J.Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered April 14, 2014, upon a verdict convicting defendant of the crimes of burglary in the third degree and petit larceny.
Defendant was charged with burglary in the third degree and petit larceny after he was arrested while in possession of copper pipes that had been stolen from the basement of an unoccupied home. Following a combined Wade /Huntley hearing, County Court denied his motion to suppress, among other things, testimony regarding a pretrial identification. A jury then convicted defendant as charged, and he now appeals.Defendant's contention that the verdict was not based upon legally sufficient evidence placing him inside the basement of the home was not preserved by his generalized motion to dismiss the charges at the close of the proof (see People v. Ressy, 141 A.D.3d 839, 840, 35 N.Y.S.3d 762 [2016] ; People v. Oliver, 135 A.D.3d 1188, 1190, 23 N.Y.S.3d 696 [2016], lv. denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ). However, inasmuch as he also contends that the verdict was against the weight of the evidence, “we necessarily consider whether all of the elements of the charged crimes were proven beyond a reasonable doubt” (People v. Thorpe, 141 A.D.3d 927, 928, 35 N.Y.S.3d 769 [2016] ; see People v. Farnsworth, 134 A.D.3d 1302, 1303, 22 N.Y.S.3d 612 [2015], lv. denied 27 N.Y.3d 1068, 38 N.Y.S.3d 839, 60 N.E.3d 1205 [2016] ).
At trial, the owner of the unoccupied home testified that she and her brother discovered an unknown male crouched down in the backyard of the home at night. She heard a “metal clanging” noise as the male began to flee on foot and observed that he was carrying long objects. She also noticed that both of the doors leading to the basement, which were closed the night before, were wide open. The brother called 911 and followed the male, who began to run. Although the brother lost sight of the male, defendant was soon taken into custody by the police a short distance away. The brother thereupon identified defendant as the male he had observed in the backyard. In addition, the police discovered that copper piping was, in fact, missing from the basement, and they were able to determine that the sections of piping found in defendant's possession matched the piping remaining there. Further, a screwdriver and gloves were discovered in defendant's pants pockets and his knuckles were scraped. After according deference to the jury's credibility determinations and considering the rational inferences to be drawn from the evidence, we are satisfied that the jury could have found the essential element of defendant's presence in the basement beyond a reasonable doubt (see People v. Alsaifullah, 96 A.D.3d 1103, 1104, 946 N.Y.S.2d 273 [2012], lv. denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012] ; People v. Brisson, 68 A.D.3d 1544, 1546–1547, 892 N.Y.S.2d 618 [2009], lv. denied 14 N.Y.3d 798, 899 N.Y.S.2d 132, 925 N.E.2d 936 [2010] ).
Defendant's contention that the showup identification was unduly suggestive is unpersuasive. Although defendant was identified while handcuffed and accompanied by a police officer standing next to a police vehicle, the identification occurred approximately 500 yards away from the crime scene and within 20 minutes after defendant had been observed in the backyard. Thus, it “was not unduly suggestive considering the seamless chain of events from defendant's crime to apprehension to the identification, and the close geographic and temporal proximity to the crime” (People v. Brown, 46 A.D.3d 1128, 1130, 847 N.Y.S.2d 729 [2007] [internal quotation marks and citation omitted]; see People v. Bellamy, 118 A.D.3d 1113, 1116, 987 N.Y.S.2d 666 [2014], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ).
Finally, trial counsel's failure to timely file his biannual attorney registration, which resulted in his temporary administrative suspension, did not deprive defendant of the effective assistance of counsel (see People v. Kieser, 79 N.Y.2d 936, 937–938, 582 N.Y.S.2d 988, 591 N.E.2d 1174 [1992] ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., LYNCH, DEVINE and MULVEY, JJ., concur.