Opinion
2014-06-18
The PEOPLE, etc., respondent, v. Horace MOORE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott and Allegra Glashausser of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott and Allegra Glashausser of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
PETER B. SKELOS, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered October 19, 2010, convicting him of murder in the second degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing (Tomei, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to establish his intent to kill the victim. As he concedes, this contention is unpreserved for appellate review, since he failed to move for a trial order of dismissal at the close of the People's case ( seeCPL 290.10, 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Clarke, 65 A.D.3d 1055, 887 N.Y.S.2d 586;People v. Howard, 50 A.D.3d 823, 854 N.Y.S.2d 776). In any event, viewing the evidence in the light most favorable to the People ( 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 guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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 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). The evidence presented at trial supported a finding that the defendant intended to kill the victim. Intent may be inferred from a defendant's conduct, as well as the circumstances surrounding the crime ( see People v. Massey, 61 A.D.3d 1433, 1433–1434, 877 N.Y.S.2d 589;People v. Pickens, 60 A.D.3d 699, 700, 874 N.Y.S.2d 570;People v. Smith, 35 A.D.3d 635, 829 N.Y.S.2d 120;People v. Campbell, 300 A.D.2d 501, 502, 752 N.Y.S.2d 101;People v. Fils–Amie, 291 A.D.2d 358, 359, 738 N.Y.S.2d 342). Here, the defendant's homicidal intent could be inferred from evidence of the number, location, and severityof the stab wounds he inflicted upon the victim.
There is no merit to the defendant's claim that he was deprived of the effective assistance of counsel by his counsel's decision not to move for a trial order of dismissal with respect to the murder count, since the evidence was legally sufficient to support his conviction of that crime ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Goley, 113 A.D.3d 1083, 1085, 977 N.Y.S.2d 847;People v. Cooper, 59 A.D.3d 1052, 1053, 872 N.Y.S.2d 793).
The defendant was not deprived of a fair trial by the admission of two excerpts of an audio recording of a telephone call between him and his friends placed while he was incarcerated on Rikers Island. The excerpts revealed the defendant threatening the individuals whom he believed had turned him in to the police and requesting that his friends kill those individuals. The first excerpt was admissible because it contained what could be interpreted as an admission by the defendant that he had killed the victim ( see People v. Chico, 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288;People v. Case, 113 A.D.3d 872, 979 N.Y.S.2d 383;People v. Peele, 73 A.D.3d 1219, 1221, 900 N.Y.S.2d 776). Any ambiguity as to the incident to which the defendant was referring affected only the weight to be given to the recording, not its admissibility ( see People v. Case, 113 A.D.3d at 873, 979 N.Y.S.2d 383;People v. Shenouda, 283 A.D.2d 446, 723 N.Y.S.2d 873). Both excerpts were admissible on the ground that they reflected his consciousness of guilt ( see People v. Green, 92 A.D.3d 953, 954, 939 N.Y.S.2d 520;People v. Peele, 73 A.D.3d at 1221, 900 N.Y.S.2d 776;People v. Malik, 265 A.D.2d 577, 578, 697 N.Y.S.2d 156). The court properly concluded that the probative value of these excerpts outweighed their potential for prejudice.
Contrary to the defendant's contention, the hearing court did not err in failing to suppress the lineup identification testimony. While “the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of the crimes charged” ( People v. Jean–Baptiste, 57 A.D.3d 566, 868 N.Y.S.2d 724, “[t]here is no requirement ... that a defendant in a lineup be surrounded by people nearly identical in appearance” ( People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608). Here, the photograph taken of the lineup reflects that the fillers sufficiently resembled the defendant. Any differences in height and weight were adequately obscured by the fact that the participants were seated, holding a card in front of their torsos ( see People v. Reyes, 60 A.D.3d 873, 874, 875 N.Y.S.2d 229;People v. Brown, 47 A.D.3d 826, 827, 849 N.Y.S.2d 639;People v. Shaw, 251 A.D.2d 686, 677 N.Y.S.2d 796). There was no evidence that the police positioned the defendant in a suggestive manner, since the defendant chose his seat and position number ( see People v. Cruz, 220 A.D.2d 253, 632 N.Y.S.2d 102;see People v. Rudolph, 161 A.D.2d 115, 116, 554 N.Y.S.2d 843).
Contrary to the defendant's contention, the court providently exercised its discretion in denying his motion, made during the trial, to reopen the suppression hearing. The defendant failed to demonstrate that the new facts he proffered in support of the motion were likely to affect the original determination ( seeCPL 710.40[4]; People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980; People v. Fuentes, 53 N.Y.2d 892, 894, 440 N.Y.S.2d 625, 423 N.E.2d 48).