Opinion
2014–06292 Ind.No. 3562/12
08-08-2018
The PEOPLE, etc., respondent, v. Anthony DANIELS, appellant.
Paul Skip Laisure, New York, N.Y. (Ronald Zapata and Angad Singh of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Ronald Zapata and Angad Singh of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Albert Tomei, J.), rendered June 11, 2014, convicting him of robbery in the first degree (two counts), attempted assault in the second degree, and attempted assault in the third degree, after a nonjury trial, and imposing sentence. The appeal from the judgment brings up for review the denial, after a hearing (Neil J. Firetog, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is affirmed.
The defendant's contention, raised in his main brief and pro se supplemental brief, that the identification evidence was legally insufficient to support his convictions of robbery in the first degree, is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins , 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). 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 establish the defendant's identity beyond a reasonable doubt (see People v. Stanley , 124 A.D.3d 919, 920, 1 N.Y.S.3d 370 ; People v. Goodman , 120 A.D.3d 587, 587, 990 N.Y.S.2d 836 ; People v. Casarrubia , 117 A.D.3d 1072, 1073, 986 N.Y.S.2d 344 ; People v. Pena , 242 A.D.2d 546, 546, 662 N.Y.S.2d 80 ; People v. Rodriguez , 192 A.D.2d 731, 731, 597 N.Y.S.2d 108 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes 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 ).
There is no merit to the defendant's contention, raised in his main brief and pro se supplemental brief, that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress identification testimony on his argument that a photographic array was unduly suggestive. "In determining whether a photographic array was ‘unduly suggestive’ the hearing court should consider whether there was any substantial likelihood that the defendant would be singled out for identification" ( People v. Dunlap , 9 A.D.3d 434, 435, 780 N.Y.S.2d 171, quoting People v. Chipp , 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Burroughs , 98 A.D.3d 583, 583, 949 N.Y.S.2d 211 ). Here, the participants were sufficiently similar in appearance such that there was little likelihood that the defendant would be singled out for identification based on particular characteristics (see People v. Staton , 138 A.D.3d 1149, 1150, 31 N.Y.S.3d 136, affd 28 N.Y.3d 1160, 49 N.Y.S.3d 351, 71 N.E.3d 939 ; People v. Thomas , 104 A.D.3d 710, 962 N.Y.S.2d 281 ; People v. Brown , 89 A.D.3d 1032, 1033, 933 N.Y.S.2d 339 ). Moreover, the fact that the background of the defendant's photograph was lighter than the backgrounds of the others did not orient the viewer toward the defendant as the perpetrator (see People v. Wells , 141 A.D.3d 1013, 1017, 35 N.Y.S.3d 795 ; People v. Lawal , 73 A.D.3d 1287, 1288, 900 N.Y.S.2d 515 ).
The defendant's contention, raised in his main brief, that he received ineffective assistance of counsel is without merit. On this record, the defendant failed "to demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcoming ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. McClean, 137 A.D.3d 940, 941, 28 N.Y.S.3d 81 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.
CHAMBERS, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.