Opinion
411 KA 20-00391
04-29-2022
The PEOPLE of the State of New York, Respondent, v. Cameron GRADY, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, NEMOYER, AND BANNISTER, 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 robbery in the first degree ( Penal Law § 160.15 [3] ) stemming from his conduct in entering a convenience store at night, threatening the cashier with a knife, and taking money from the register. At trial, the cashier identified defendant as the perpetrator, and two people who were familiar with defendant identified him in a surveillance video.
Defendant contends that County Court erred in admitting in evidence his arrest photograph. "An arrest photograph may be admitted into evidence in order to establish that a defendant's appearance was different at the time of the commission of the crime than at trial" ( People v. Ahmr , 22 A.D.3d 593, 594, 804 N.Y.S.2d 331 [2d Dept. 2005], lv denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2005] ). The court must weigh the probative value of the evidence against its prejudice to defendant (see People v. Buskey , 13 A.D.3d 1058, 1059, 787 N.Y.S.2d 796 [4th Dept. 2004] ). Here, the court found that the probative value of the photograph was significant in that it was taken just three days after the robbery and 15 months prior to the trial. In addition, the prejudice to defendant was minimal inasmuch as the jury was advised that the photograph was taken at the time of defendant's arrest for this charge (see People v. Thiessen , 158 A.D.2d 737, 740, 550 N.Y.S.2d 944 [3d Dept. 1990], mod on other grounds 76 N.Y.2d 816, 559 N.Y.S.2d 970, 559 N.E.2d 664 [1990] ; People v. Johnston , 43 A.D.3d 1273, 1274, 842 N.Y.S.2d 837 [4th Dept. 2007], lv denied 9 N.Y.3d 1007, 850 N.Y.S.2d 395, 880 N.E.2d 881 [2007] ). The court thus properly admitted the photograph in evidence to show defendant's appearance at the time of the crime (see People v. Gadson , 236 A.D.2d 421, 422, 653 N.Y.S.2d 616 [2d Dept. 1997], lv denied 89 N.Y.2d 1011, 658 N.Y.S.2d 250, 680 N.E.2d 624 [1997] ; Thiessen , 158 A.D.2d at 740, 550 N.Y.S.2d 944 ; People v. Greenridge , 46 A.D.2d 947, 948, 362 N.Y.S.2d 212 [3d Dept. 1974] ).
Defendant failed to preserve for our review his contention that the court erred in allowing one of the witnesses to identify defendant in the surveillance video (see People v. Sampson , 289 A.D.2d 1022, 1023, 735 N.Y.S.2d 283 [4th Dept. 2001], lv denied 97 N.Y.2d 733, 740 N.Y.S.2d 706, 767 N.E.2d 163 [2002] ). In any event, that contention is without merit. "A lay witness may give an opinion concerning the identity of a person depicted in a surveillance [video] if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than is the jury" ( People v. Mosley , 200 A.D.3d 1658, 1659, 158 N.Y.S.3d 511 [4th Dept. 2021] [internal quotation marks omitted]; see People v. Russell , 165 A.D.2d 327, 336, 567 N.Y.S.2d 548 [2d Dept. 1991], affd 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992] ; People v. Graham , 174 A.D.3d 1486, 1487-1488, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] ). Here, the witness had known defendant for several years and had worked with him. Besides identifying defendant from his appearance, the witness identified defendant in the video from the "way he[ ] walk[s]" and his "whole demeanor." In addition, the witness could identify defendant in the video based on his voice. We therefore conclude that the court did not abuse its discretion in permitting the testimony " ‘to aid the jury in making an independent assessment regarding whether the man in the [video] was indeed the defendant’ " ( Mosley , 200 A.D.3d at 1659, 158 N.Y.S.3d 511 ; see People v. Gambale , 158 A.D.3d 1051, 1053, 70 N.Y.S.3d 684 [4th Dept. 2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ).
Defendant contends that the prosecutor improperly bolstered the credibility of the identification witnesses by a certain question asked during direct examination and that the prosecutor improperly shifted the burden of proof on summation. Defendant failed to preserve those contentions for our review because he either failed to object or did not set forth the reasons for his objection (see People v. Wolff , 103 A.D.3d 1264, 1265, 962 N.Y.S.2d 529 [4th Dept. 2013], lv denied 21 N.Y.3d 948, 968 N.Y.S.2d 10, 990 N.E.2d 144 [2013] ). We decline to exercise our power to review his contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We reject defendant's contention that he was punished for exercising his right to trial (see People v. Nowlin , 145 A.D.3d 1447, 1451, 44 N.Y.S.3d 625 [4th Dept. 2016], lv denied 29 N.Y.3d 1035, 62 N.Y.S.3d 304, 84 N.E.3d 976 [2017] ). The sentence is not unduly harsh or severe. Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted upon a plea of guilty, and it must therefore be amended to reflect that he was convicted upon a jury verdict.