Opinion
8037 Ind. 4352/13
03-26-2019
The PEOPLE of the State of New York, Respondent, v. Clemente RIVERA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Tom, Mazzarelli, Webber, JJ.
The court providently exercised its discretion in permitting two witnesses to give lay opinion testimony that defendant was the person depicted in photos from surveillance videotapes from areas in and around the building where the robbery occurred and at the shelter where defendant resided both several months prior to the robbery and at the time of the robbery. This testimony "served to aid the jury in making an independent assessment regarding whether the man in the [videos] was indeed the defendant" ( People v. Russell, 79 N.Y.2d 1024, 1025, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992] ), because there was "some basis for concluding that the witness[es] [were] more likely to correctly identify the defendant from the [videos] than [was] the jury" ( People v. Sanchez, 95 A.D.3d 241, 249, 941 N.Y.S.2d 599 [1st Dept. 2012], affd 21 N.Y.3d 216, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ).
The People established that defendant's appearance had changed since the crime in several significant respects. Furthermore, the witnesses, who were sufficiently familiar with defendant, were able to recognize defendant's mannerisms and peculiar way of walking. In addition, the record establishes the poor quality of the photographic evidence.
The court also providently exercised its discretion in declining to hold a full evidentiary hearing on the admissibility of the lay opinions. The information before the court, including the witnesses' detailed grand jury testimony covering the relevant subjects, clearly established a proper foundation for the evidence, and there was no factual issue requiring a hearing.
We have considered and rejected defendant's remaining arguments in this regard.