Opinion
693 KA 13-01131
10-08-2021
The PEOPLE of the State of New York, Respondent, v. Tommy DAVIS, Defendant-Appellant.
BRUCE R. BRYAN, MANLIUS, FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
BRUCE R. BRYAN, MANLIUS, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25 [1] ) and attempted murder in the second degree ( §§ 110.00, 125.25 [1] ). Contrary to defendant's contention, his conviction on the murder and attempted murder counts is supported by legally sufficient evidence (see People v. Rouse , 34 N.Y.3d 269, 274-275, 117 N.Y.S.3d 634, 140 N.E.3d 957 [2019] ; People v. Alligood , 192 A.D.3d 1508, 1508-1509, 140 N.Y.S.3d 809 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 679, 172 N.E.3d 791 [2021] ; cf. CPL 300.40 ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Contrary to defendant's contentions, County Court properly refused to suppress identification testimony by the teenage eyewitnesses (see People v. Marte , 12 N.Y.3d 583, 586-589, 884 N.Y.S.2d 205, 912 N.E.2d 37 [2009], cert denied 559 U.S. 941, 130 S.Ct. 1501, 176 L.Ed.2d 117 [2010] ; see also People v. Jackson , 90 A.D.3d 519, 519, 934 N.Y.S.2d 311 [1st Dept. 2011], lv denied 19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012] ; People v. Elliot , 283 A.D.2d 183, 183-184, 726 N.Y.S.2d 7 [1st Dept. 2001], lv denied 96 N.Y.2d 901, 730 N.Y.S.2d 798, 756 N.E.2d 86 [2001] ). Moreover, given the absence of any "substantial issues as to the constitutionality of the [subject identification procedures]," the court properly denied defendant's request to call those teenagers to testify at the suppression hearing ( People v. Chipp , 75 N.Y.2d 327, 338, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). Indeed, defendant sought to call those teenagers at the suppression hearing only to demonstrate suggestiveness arising from the actions of private citizens, which is not a cognizable basis for suppressing identification testimony on due process grounds (see Marte , 12 N.Y.3d at 586-589, 884 N.Y.S.2d 205, 912 N.E.2d 37 ).
Contrary to defendant's further contentions, the court's Sandoval ruling was not an abuse of discretion (see People v .Cotton , 184 A.D.3d 1145, 1146-1147, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020] ), and the imposition of consecutive terms of imprisonment on the murder and attempted murder counts was not illegal (see People v. McKnight , 16 N.Y.3d 43, 47-50, 917 N.Y.S.2d 594, 942 N.E.2d 1019 [2010] ; People v. Smith , 171 A.D.3d 1102, 1105-1106, 98 N.Y.S.3d 313 [2d Dept. 2019], lv denied 33 N.Y.3d 1073, 105 N.Y.S.3d 31, 129 N.E.3d 351 [2019] ). Defendant's remaining contentions do not warrant reversal or modification of the judgment.