Opinion
2015-10-7
The PEOPLE, etc., respondent, v. Ralph REDDING, appellant.
Carl D. Birman, Mamaroneck, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (John Carmody, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
Carl D. Birman, Mamaroneck, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (John Carmody, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Appeals by the defendant (1) from a judgment of the County Court, Westchester County (Hubert, J.), rendered February 24, 2012, convicting him of burglary in the first degree (two counts), robbery in the first degree, robbery in the second degree, assault in the second degree (two counts), and assault in the third degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court (Zambelli, J.), dated March 26, 2014, which denied his motion pursuant to CPL 440.10 to vacate the judgment rendered February 24, 2012. The appeal from the judgment brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment and the order are affirmed.
Contrary to the defendant's contention, the County Court properly denied those branches of his omnibus motion which were to suppress the identification testimony of four witnesses who identified him after viewing photo packets. “A photographic array is suggestive where some characteristic of an individual's picture draws the viewer's attention to it, indicating that the police have made a particular selection” (People v. Curtis, 71 A.D.3d 1044, 1044, 900 N.Y.S.2d 68; see People v. Wright, 297 A.D.2d 391, 391, 746 N.Y.S.2d 611). Here, the various persons depicted in the photo packets used in the pretrial identification procedures were sufficiently similar in appearance to the defendant that there was little likelihood the defendant would be singled out for identification based on particular characteristics ( see People v. Curtis, 71 A.D.3d at 1045, 900 N.Y.S.2d 68). Although the background of the defendant's photograph was lighter than the backgrounds of the other photographs, and the defendant's photograph was of poorer resolution than the others, those facts were not sufficient to render the photo packets unduly suggestive ( see People v. Boria, 279 A.D.2d 585, 586, 719 N.Y.S.2d 682; People v. Sawyer, 253 A.D.2d 501, 501, 677 N.Y.S.2d 799; People v. Martin, 245 A.D.2d 308, 667 N.Y.S.2d 265; People v. Tedesco, 143 A.D.2d 155, 156, 531 N.Y.S.2d 609). To the extent the defendant argues that suppression was improperlydenied because the County Court did not apply the best practices standards of the New York State District Attorneys Association, his contention is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Lago, 60 A.D.3d 784, 784, 875 N.Y.S.2d 178).
The County Court providently exercised its discretion in denying, without a hearing, the defendant's motion to admit expert testimony at trial on the issue of the reliability of eyewitness identifications, since there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony ( see People v. Granger, 122 A.D.3d 940, 941, 997 N.Y.S.2d 466; People v. Rhodes, 115 A.D.3d 681, 682, 981 N.Y.S.2d 548; People v. Rodriguez, 98 A.D.3d 530, 532, 949 N.Y.S.2d 441; People v. Fernandez, 78 A.D.3d 726, 726–727, 910 N.Y.S.2d 140).
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, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Bonds, 128 A.D.3d 1083, 9 N.Y.S.3d 407).
Lastly, the County Court properly denied the defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10. The court properly determined that there was no merit to the defendant's contention that the People committed certain Brady violations ( see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215), since the evidence at issue was either not Brady material ( see People v. McClain, 53 A.D.3d 556, 861 N.Y.S.2d 764; People v. Singh, 5 A.D.3d 403, 403–404, 771 N.Y.S.2d 908) or not exculpatory. The defendant's remaining contentions in connection with the motion either are not properly before this Court ( seeCPL 440.10[2][b]; People v. Johnson, 205 A.D.2d 707, 708, 613 N.Y.S.2d 429), are without merit, or have been rendered academic in light of our determination.