Opinion
2017–01200 Ind.No.787/15
11-14-2018
The PEOPLE, etc., Respondent, v. Herman LANCASTER, Appellant.
Hegge & Confusione, LLC, New York, N.Y. (Michael Confusione of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel), for respondent.
Hegge & Confusione, LLC, New York, N.Y. (Michael Confusione of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The charges against the defendant arose from a shooting at a store in Brooklyn which resulted in the death of the victim. The shooting, which was captured on several surveillance cameras located inside and outside the store, showed an individual wearing a black jacket, a hat with a pompom, and a red scarf fire a gun several times at the victim as the victim fled from the store. The defendant and another individual were stopped by the police near the scene of the crime shortly after it occurred and taken into custody. At a showup identification conducted shortly thereafter, an employee of the store who witnessed the shooting identified the defendant as the perpetrator.
We agree with the Supreme Court's determination denying that branch of the defendant's omnibus motion which was to suppress identification evidence. "Showup procedures, although generally disfavored, are permissible where employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification" ( People v. Castro , 149 A.D.3d 862, 863, 52 N.Y.S.3d 385 ; see People v. Huerta , 141 A.D.3d 602, 602, 35 N.Y.S.3d 433 ). Here, the showup procedure took place approximately 30 minutes after the shooting and one block away from the crime scene. The People met their initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness in the showup identification through the testimony of the detective who brought the witness to the showup location, and through the testimony of the police officer who apprehended the defendant (see People v. Slattery , 147 A.D.3d 788, 790, 46 N.Y.S.3d 193 ; People v. Bartlett , 137 A.D.3d 806, 806, 27 N.Y.S.3d 163 ; People v. Mack , 135 A.D.3d 962, 963, 24 N.Y.S.3d 381 ; People v. Jerry , 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317 ; People v. Ervin , 118 A.D.3d 910, 911, 987 N.Y.S.2d 454 ; People v. Sain , 111 A.D.3d 964, 965–966, 976 N.Y.S.2d 107 ; People v. Calero , 105 A.D.3d 864, 865, 962 N.Y.S.2d 665 ). Contrary to the defendant's contention, the showup identification was not rendered unduly suggestive because he was handcuffed and in the presence of uniformed police officers and police cars (see People v. Slattery , 147 A.D.3d at 790, 46 N.Y.S.3d 193 ; People v. Williams , 143 A.D.3d 847, 848, 39 N.Y.S.3d 482 ; People v. Bartlett , 137 A.D.3d at 806, 27 N.Y.S.3d 163 ; People v. Ward , 116 A.D.3d 989, 991, 984 N.Y.S.2d 123 ).
The defendant's contention that the evidence was legally insufficient to support his convictions because the prosecution failed to establish his identity as the perpetrator of those crimes is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 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. Lewis , 150 A.D.3d 1264, 1264, 57 N.Y.S.3d 62 ; People v. Thomas , 146 A.D.3d 991, 992, 46 N.Y.S.3d 130 ; People v. Calas , 134 A.D.3d 1043, 1045, 22 N.Y.S.3d 217 ; People v. Pride , 129 A.D.3d 869, 869, 11 N.Y.S.3d 634 ; People v. Delgado , 109 A.D.3d 483, 483, 970 N.Y.S.2d 84 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (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 factfinder'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 ). Although the employee of the store was unable to make an in-court identification of the defendant as the perpetrator, despite his testimony that he saw the perpetrator at the store almost every day, he testified that at the showup identification, he positively identified the individual wearing the red scarf as the perpetrator (see People v. Killings , 159 A.D.3d 1398, 1399, 73 N.Y.S.3d 821 ; People v. Dixson , 147 A.D.3d 484, 484, 47 N.Y.S.3d 279 ). The police officer who apprehended the defendant and conducted the showup procedure confirmed that the defendant was wearing a red scarf (see People v. John , 51 A.D.3d 819, 820, 859 N.Y.S.2d 456 ).
The defendant also contends that the admission into evidence of an autopsy report prepared by a medical examiner through the testimony of another medical examiner employed by the Office of the Chief Medical Examiner for the City of New York deprived him of his constitutional right of confrontation. This contention is unpreserved for appellate review (see CPL 470.05[2] ; People v. Jackson , 125 A.D.3d 1002, 1004, 2 N.Y.S.3d 625 ; People v. Green , 110 A.D.3d 825, 826, 973 N.Y.S.2d 679 ) and, in any event, without merit (see People v. John , 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ; People v. Freycinet , 11 N.Y.3d 38, 41, 862 N.Y.S.2d 450, 892 N.E.2d 843 ; People v. Portes , 125 A.D.3d 794, 794, 4 N.Y.S.3d 97 ; People v. Acevedo , 112 A.D.3d 454, 455, 976 N.Y.S.2d 82 ; People v. Herb , 110 A.D.3d 829, 830, 972 N.Y.S.2d 668 ).
Contrary to the defendant's contention, the People established a sufficient chain of custody of certain clothing recovered from the defendant by providing reasonable assurances of the identity and unchanged condition of the clothing between its recovery and the trial (see People v. Ortiz , 80 A.D.3d 628, 630, 914 N.Y.S.2d 281 ; People v. Caswell , 56 A.D.3d 1300, 1303, 867 N.Y.S.2d 638 ; People v. Miller , 242 A.D.2d 896, 897, 662 N.Y.S.2d 886 ). Any deficiencies in the chain of custody went only to the weight to be accorded the evidence, not its admissibility (see People v. Hawkins , 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Julian , 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ; People v. Mustafa , 114 A.D.3d 966, 967, 980 N.Y.S.2d 921 ; People v. Donovan , 141 A.D.2d 835, 836–837, 530 N.Y.S.2d 174 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., CHAMBERS, BARROS and BRATHWAITE NELSON, JJ., concur.