Opinion
1243 KA 18-02395
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Lawren GOINS, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, WINSLOW, 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 his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ) and attempted murder in the second degree (§§ 110.00, 125.25 [1]), arising from a shooting in which one victim was killed and another was wounded. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his challenges to Supreme Court's refusal to suppress identification testimony and the severity of his sentence ( see People v. Herman , 151 A.D.3d 1866, 1867, 54 N.Y.S.3d 352 [4th Dept. 2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ; People v. Hankerson , 61 A.D.3d 1424, 1425, 877 N.Y.S.2d 769 [4th Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ), we nevertheless conclude that those challenges lack merit.
We reject defendant's contention that the court erred in refusing to suppress identification testimony based on allegedly suggestive photo array identification procedures conducted by the police. Initially, defendant "failed to preserve for our review his contention that the photo array was unduly suggestive because he was the only subject therein [whose] eyes" were looking slightly to the right ( People v. Bell , 19 A.D.3d 1074, 1075, 796 N.Y.S.2d 464 [4th Dept. 2005], lv denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155 [2005], reconsideration denied 5 N.Y.3d 850, 806 N.Y.S.2d 170, 840 N.E.2d 139 [2005] ). In any event, that contention is without merit. The photos in the array depict six males of similar age, skin tone, hairstyle, and physical features. "Although defendant is the only person in the array looking [slightly] to his [right], the viewer's attention is not drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection" ( People v. Rogers , 245 A.D.2d 1041, 1041, 666 N.Y.S.2d 66 [4th Dept. 1997] ; see People v. Lee , 96 N.Y.2d 157, 163, 726 N.Y.S.2d 361, 750 N.E.2d 63 [2001] ). "Nor was there any evidence at the Wade hearing indicating that the identification procedures [otherwise] employed by the police were unduly suggestive" ( People v. Linder , 114 A.D.3d 1200, 1201, 979 N.Y.S.2d 754 [4th Dept. 2014], lv denied 23 N.Y.3d 1022, 992 N.Y.S.2d 805, 16 N.E.3d 1285 [2014] ; see People v. Hoffman , 162 A.D.3d 1753, 1755, 79 N.Y.S.3d 824 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 119, 113 N.E.3d 953 [2018] ). The court was entitled to credit the testimony of the detective at the hearing that the witness was not urged or influenced in any way to make a particular selection from the photo array ( see People v. Rios , 72 A.D.3d 1489, 1490, 899 N.Y.S.2d 769 [4th Dept. 2010], lv denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 [2010], reconsideration denied 16 N.Y.3d 799, 919 N.Y.S.2d 516, 944 N.E.2d 1156 [2011] ). " ‘The evaluation of credibility by the hearing court is entitled to great weight and its determination will be not disturbed where, as here, it is supported by the record’ " ( People v. Johnson , 262 A.D.2d 1004, 1005, 693 N.Y.S.2d 789 [4th Dept. 1999], lv denied 93 N.Y.2d 1020, 697 N.Y.S.2d 579, 719 N.E.2d 940 [1999] ). We thus conclude that the court properly determined that the People met their initial burden of establishing that the police conduct with respect to the photo array procedure was reasonable and that defendant failed to meet his ultimate burden of proving that the procedure was unduly suggestive ( see People v. Logan , 178 A.D.3d 1386, 1387, 116 N.Y.S.3d 835 [4th Dept. 2019], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 42, 149 N.E.3d 880 [2020] ; see generally People v. Chipp , 75 N.Y.2d 327, 335, 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] ).
Contrary to defendant's further contention, we conclude that the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [b] ). Finally, to the extent that defendant has raised an alleged Brady violation, that allegation concerns matters outside the record on appeal and thus may properly be raised by way of a motion pursuant to CPL article 440 ( see People v. Johnson , 88 A.D.3d 1293, 1294, 930 N.Y.S.2d 362 [4th Dept. 2011] ; People v. Ellis , 73 A.D.3d 1433, 1434, 903 N.Y.S.2d 615 [4th Dept. 2010], lv denied 15 N.Y.3d 851, 909 N.Y.S.2d 28, 935 N.E.2d 820 [2010] ).