Opinion
06-07-2017
The PEOPLE, etc., respondent, v. Naqunne L. JACKSON, appellant.
Marianne Karas, Thornwood, NY, for appellant, and appellant pro se. Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Jason R. Richards of counsel), for respondent.
Marianne Karas, Thornwood, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Jason R. Richards of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered February 26, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Peck, J.), after a hearing pursuant to a stipulation in lieu of motions, of the suppression of identification testimony.
ORDERED that the judgment is affirmed.
The hearing court properly denied suppression of the identification testimony of one of the People's witnesses. The evidence presented at the suppression hearing established that the witness was very familiar with the defendant before the witness was asked to identify the defendant in a single photograph, and that the identification was merely confirmatory (see People v. Rodriguez, 79 N.Y.2d 445, 451–452, 583 N.Y.S.2d 814, 593 N.E.2d 268 ; People v. Rodriguez, 111 A.D.3d 856, 857, 975 N.Y.S.2d 132 ; People v. Whitlock, 95 A.D.3d 909, 911, 943 N.Y.S.2d 227 ).
The defendant failed to preserve for appellate review his contention that a police officer who was not a witness to the crime in question was improperly permitted to testify that he believed an individual depicted in certain surveillance videos was the defendant (see CPL 470.05[2] ; People v. Watson, 121 A.D.3d 921, 922, 993 N.Y.S.2d 384 ). In any event, the contention is without merit. The Supreme Court providently exercised its discretion in permitting the police officer's testimony. The police officer testified that he knew the defendant from his patrols of the defendant's neighborhood, and that the defendant changed his appearance after the subject crimes. This testimony served to aid the jury in making an independent assessment of whether the person depicted in the video was the defendant (see People v. Sanchez, 21 N.Y.3d 216, 225, 969 N.Y.S.2d 840, 991 N.E.2d 698 ; People v. Russell, 79 N.Y.2d 1024, 1025, 584 N.Y.S.2d 428, 594 N.E.2d 922 ; People v. Daniels, 140 A.D.3d 1083, 1084, 34 N.Y.S.3d 161 ; People v. Ray, 100 A.D.3d 933, 933, 954 N.Y.S.2d 199 ).
The defendant contends that he was denied his constitutional rights to present a complete defense and confront witnesses because the Supreme Court denied his application for access to the personnel files of a police officer and a detective who testified against him at trial. However, since the defendant did not assert a constitutional right to the evidence at trial, his constitutional claims are unpreserved for appellate review (see People v. Simmons, 106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618 ; People v. Antonetty, 268 A.D.2d 254, 255, 701 N.Y.S.2d 362 ). In any event, the court did not err in denying the defendant's application (see Civil Rights Law § 50–a ; People v. Gissendanner, 48 N.Y.2d 543, 550, 423 N.Y.S.2d 893, 399 N.E.2d 924 ; People v. Perez, 44 A.D.3d 417, 417, 843 N.Y.S.2d 67 ; People v. Andino, 291 A.D.2d 242, 243, 736 N.Y.S.2d 870 ).
The Supreme Court providently exercised its discretion in denying the defendant's request for an adjournment to retain private counsel, made at the suppression hearing (see People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 ; People v. Wesley, 134 A.D.3d 964, 964–965, 21 N.Y.S.3d 345 ; People v. O'Kane, 55 A.D.3d 315, 316, 865 N.Y.S.2d 61 ; People v. Ambrose, 147 A.D.2d 577, 577–578, 537 N.Y.S.2d 870 ).
The Supreme Court also providently exercised its discretion in denying the request to assign new counsel, made at sentencing (see People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; People v. Linares, 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ; People v. Wright, 147 A.D.3d 1088, 47 N.Y.S.3d 471 ; see also People v. Davis, 226 A.D.2d 125, 126, 640 N.Y.S.2d 53 ). Moreover, the defendant failed to demonstrate that he received less than meaningful representation of counsel at sentencing based on a perceived conflict of interest (see generally People v. Sanchez, 21 N.Y.3d at 222–223, 969 N.Y.S.2d 840, 991 N.E.2d 698 ; People v. Davis, 226 A.D.2d at 126, 640 N.Y.S.2d 53 ).
The defendant failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Gomez, 135 A.D.3d 954, 957, 23 N.Y.S.3d 383 ). In any event, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to trial (see People v. Pena, 50 N.Y.2d 400, 411–412, 429 N.Y.S.2d 410, 406 N.E.2d 1347 ; People v. Gomez, 135 A.D.3d at 957, 23 N.Y.S.3d 383 ; People v. Ramos, 74 A.D.3d 991, 992, 904 N.Y.S.2d 81 ). Moreover, the sentence imposed was not excessive (see People v. Williams, 127 A.D.3d 1114, 1118, 7 N.Y.S.3d 434 ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence, as requested by the defendant in Point III of his pro se supplemental brief (see CPL 470.15[5] ; 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record, 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 ).
The defendant's contention, raised in his pro se supplemental brief, that the felony complaint was defective is academic, since the felony complaint was superseded by an indictment (see People v. Barnette, 150 A.D.3d 1136, 2017 N.Y. Slip Op. 04131 [2d Dept.2017] ; People v. Barnett, 108 A.D.3d 638, 968 N.Y.S.2d 393 ). The remaining contentions raised by the defendant in his pro se supplemental brief are without merit.