Opinion
2013-02427 Ind. No. 10636/06.
01-20-2016
The PEOPLE, etc., respondent, v. Christopher GRAY, appellant.
Lynn W. L Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Lynn W. L Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered February 19, 2013, convicting him of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress in-court identification evidence.
ORDERED that the judgment is affirmed.
An in-court identification of a defendant will not be suppressed merely by reason of an antecedent unlawful seizure, so long as the People establish, by clear and convincing proof, that the in-court identification is derived from the witness's independent recollection (see People v. White, 117 A.D.2d 127, 133, 503 N.Y.S.2d 59; see also People v. Marte, 12 N.Y.3d 583, 586, 884 N.Y.S.2d 205, 912 N.E.2d 37; People v. Houston, 82 A.D.3d 1122, 1122, 918 N.Y.S.2d 793; People v. Ashe, 297 A.D.2d 287, 288, 746 N.Y.S.2d 38). The independent observation must be reliable under the totality of the circumstances (see People v. Adelman, 36 A.D.3d 926, 927, 828 N.Y.S.2d 555). The amount of time that a witness has to observe the defendant is only one factor to be considered (see People v. Radcliffe, 273 A.D.2d 483, 484, 711 N.Y.S.2d 436; People v. Hyatt, 162 A.D.2d 713, 713–714, 557 N.Y.S.2d 415), and “even a matter of a few seconds may suffice for independent source purposes” (People v. Williams, 222 A.D.2d 149, 153–154, 646 N.Y.S.2d 665). Here, after conducting a hearing and reviewing the appropriate factors (see Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401; People v. Lopez, 85 A.D.3d 1641, 1641, 924 N.Y.S.2d 871), the hearing court properly concluded that the People established by clear and convincing evidence that the trained police officer's observations during the commission of the crime provided an independent basis for the officer's in-court identification of the defendant. The officer described the suspect's gender, race, height, and clothing, and the type of weapon that he was holding, after observing him during a face-to-face encounter in well-lit surroundings (see People v. Small, 110 A.D.3d 1106, 1106–1107, 973 N.Y.S.2d 796; People v. Allah, 283 A.D.2d 436, 436, 725 N.Y.S.2d 659; Matter of Tarik R., 232 A.D.2d 233, 647 N.Y.S.2d 783; People v. Weiner, 226 A.D.2d 757, 758, 640 N.Y.S.2d 332; People v. Jones, 215 A.D.2d 244, 244, 627 N.Y.S.2d 2; People v. Hyatt, 162 A.D.2d at 713–714, 557 N.Y.S.2d 415). The court credited the officer's testimony that he viewed the perpetrator face-to-face for five to six seconds, and we find no basis to disturb the court's determination that the officer's testimony was credible (see People v. Kelly, 131 A.D.3d 484, 485, 15 N.Y.S.3d 391).
The defendant's contention that the People failed to prove his identity as one of the perpetrators of the crime beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 2; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Wiggs, 130 A.D.3d 659, 659, 14 N.Y.S.3d 53; People v. Harris, 129 A.D.3d 990, 990–991, 13 N.Y.S.3d 443). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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. Calabria, 3 N.Y.3d 80, 783 N.Y.S.2d 321, 816 N.E.2d 1257; People v. Brown, 119 A.D.3d 953, 954, 989 N.Y.S.2d 866; People v. Ramirez, 221 A.D.2d 665, 666, 635 N.Y.S.2d 500, mod 89 N.Y.2d 444, 654 N.Y.S.2d 998, 677 N.E.2d 722). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.155; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt 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).
Contrary to the defendant's contention, he has not demonstrated that his trial counsel was ineffective under either federal or state constitutional standards (see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400). The record establishes that defense counsel provided meaningful representation as a whole (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584), and the defendant has failed to show the absence of strategic or other legitimate explanations for his attorney's alleged shortcomings (see People v. Barboni, 21 N.Y.3d 393, 405–407, 971 N.Y.S.2d 729, 994 N.E.2d 820; People v. Benitez, 120 A.D.3d 705, 706, 991 N.Y.S.2d 133).