Opinion
2013-10-30
The PEOPLE, etc., respondent, v. Shawn PETERSON, appellant.
Mark Diamond, New York, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Barbara Kornblau of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Barbara Kornblau of counsel), for respondent.
WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.), rendered March 30, 2012, convicting him of robbery in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (McCormack, J.) pursuant to a stipulation in lieu of motions, of the suppression of identification testimony and physical evidence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the police officers who responded to reports of two robberies acted lawfully in stopping him and his two accomplices. The general similarity of the physical characteristics of the defendant and his companions to the descriptions of the offenders that were broadcast in two police radio calls, the observation of the men in close temporal and spatial proximity to the crimes, and the other attendant circumstances supported a finding of reasonable suspicion that the men were involved in criminal activity ( see People v. Martinez, 80 N.Y.2d 444, 591 N.Y.S.2d 823, 606 N.E.2d 951;People v. Williams, 73 A.D.3d 1097, 905 N.Y.S.2d 185;People v. Warren, 276 A.D.2d 505, 714 N.Y.S.2d 107).
We likewise reject the contention that the hearing court erred in denying suppression of the showup identification of the defendant, made shortly after the robberies occurred and within blocks of the two crime scenes. A showup is permissible where, as in this case, it is conducted in close physical and temporal proximity to the commission of a crime for the purpose of securing a prompt and reliable identification ( see People v. Ortiz, 90 N.Y.2d 533, 664 N.Y.S.2d 243, 686 N.E.2d 1337;People v. Julien, 100 A.D.3d 925, 954 N.Y.S.2d 201;People v. Hicks, 78 A.D.3d 1075, 913 N.Y.S.2d 237;People v. Williams, 73 A.D.3d 1097, 905 N.Y.S.2d 185;People v. Bennett, 37 A.D.3d 483, 829 N.Y.S.2d 206). The fact that the defendant was viewed in the company of the police and in the vicinity of several patrol cars did not render the showup identification constitutionally infirm ( see People v. Mais, 71 A.D.3d 1163, 897 N.Y.S.2d 716;People v. Gonzalez, 57 A.D.3d 560, 868 N.Y.S.2d 302;People v. Siler, 45 A.D.3d 1403, 844 N.Y.S.2d 823;People v. Pierre, 2 A.D.3d 461, 767 N.Y.S.2d 822).
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), the evidence 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 jury's opportunity to view the witness, 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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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).
Similarly unavailing are the defendant's contentions regarding the amendment of the indictment ( seeCPL 200.70[1]; People v. Daum, 278 A.D.2d 505, 718 N.Y.S.2d 644;People ex rel. Shaffer v. Kuhlmann, 173 A.D.2d 1034, 570 N.Y.S.2d 695;People v. Ames, 115 A.D.2d 543, 496 N.Y.S.2d 65), ineffective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the imposition of consecutive sentences ( see People v. Ramirez, 89 N.Y.2d 444, 454, 654 N.Y.S.2d 998, 677 N.E.2d 722;People v. Ayala, 36 A.D.3d 827, 829 N.Y.S.2d 154;People v. Niles, 258 A.D.2d 478, 685 N.Y.S.2d 104).
The defendant's remaining contentions regarding prosecutorial misconduct and improper summation remarks are unpreserved for appellate review ( seeCPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Floyd, 97 A.D.3d 837, 948 N.Y.S.2d 683) and, in any event, without merit.