Opinion
1390-, 1390A Ind. No. 3402/16 Case Nos. 2018–1885 2022–02520
01-11-2024
The PEOPLE of the State of New York, Respondent, v. Edward SAMUEL, Defendant–Appellant.
Caprice R. Jenerson, Office of the Appellate Defender, New York (David Bernstein of counsel), and Freshfields Bruckhaus Deringer U.S. LLP, New York (Christian Vandergeest of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (David Bernstein of counsel), and Freshfields Bruckhaus Deringer U.S. LLP, New York (Christian Vandergeest of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Kern, J.P., Oing, Singh, Kapnick, O'Neill Levy, JJ.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered August 15, 2017, convicting defendant, after a jury trial, of robbery in the first degree (two counts), and sentencing him, as a persistent violent felony offender, to concurrent terms of 22 years to life, and order, same court and Justice, entered on or about November 30, 2021, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
The People's failure to provide notice of a second witness did not warrant preclusion of the showup identification evidence (see CPL 710.30[1] ). Because defendant moved to suppress both witnesses’ identifications and "received a full hearing on the fairness of the identification procedure, any ... deficiency in the notice provided by the People was irrelevant" ( People v. Kirkland, 89 N.Y.2d 903, 904, 653 N.Y.S.2d 256, 675 N.E.2d 1208 [1996] ; see CPL 710.30[3] ).
The court properly denied defendant's motion to suppress the showup identifications. The showup was conducted within close spatial and temporal proximity to the robbery as part of an unbroken chain of events and was not unduly suggestive (see People v. Duuvon, 77 N.Y.2d 541, 544–545, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ; People v. Cannon, 306 A.D.2d 130, 131, 761 N.Y.S.2d 46 [1st Dept. 2003], lv denied 1 N.Y.3d 539, 775 N.Y.S.2d 244, 807 N.E.2d 294 [2003] ). "While the better practice, when feasible, is not to conduct a showup before multiple witnesses" ( People v. Vincenty, 138 A.D.3d 428, 429, 28 N.Y.S.3d 686 [1st Dept. 2016], lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ), the two witnesses simultaneously identified defendant in response to a neutral question by the police officer, and nothing indicated that the witnesses influenced each other (see People v. Williams, 87 A.D.3d 938, 939, 929 N.Y.S.2d 857 [1st Dept. 2011], lv denied 18 N.Y.3d 863, 938 N.Y.S.2d 870, 962 N.E.2d 295 [2011] ). The showup was not rendered suggestive by the fact that defendant was in handcuffs and guarded by officers when viewed by the witnesses (see People v. Tramble, 60 A.D.3d 443, 443, 875 N.Y.S.2d 28 [1st Dept. 2009], lv denied 12 N.Y.3d 822, 881 N.Y.S.2d 30, 908 N.E.2d 938 [2009] ).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis to disturb the jury's credibility determinations. The record raises a reasonable inference that defendant displayed a knife during the robbery, and the jury could rationally find that defendant's statements to the store employees to "move," "back off," and "get out [of] my way" while holding the knife constituted a threatened use of a dangerous instrument, regardless of whether the knife was opened or closed (see People v. Boisseau, 33 A.D.3d 568, 824 N.Y.S.2d 17 [1st Dept. 2006], lv denied 8 N.Y.3d 844, 830 N.Y.S.2d 702, 862 N.E.2d 794 [2007] ; People v. Rivera, 272 A.D.2d 140, 140, 708 N.Y.S.2d 374 [1st Dept. 2000], lv denied 95 N.Y.2d 857, 714 N.Y.S.2d 8, 736 N.E.2d 869 [2000] ; People v. Thomas, 161 A.D.2d 543, 543, 556 N.Y.S.2d 47 [1st Dept. 1990], lv denied 76 N.Y.2d 866, 560 N.Y.S.2d 1006, 561 N.E.2d 906 [1990] ; see also Penal Law §§ 10.00[13], 160.15[3] ).
Defendant's CPL 440.10 motion to vacate the judgment, which was based on the People's belated disclosure of the prior convictions of two main witnesses, in violation of ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ) and former CPL 240.45(1)(b), was properly denied. Defendant failed to show that he was prejudiced by the People's delay, since he was given an opportunity to use the material to cross-examine the witnesses and did not seek a continuance for further investigation and preparation (see People v. Osborne, 91 N.Y.2d 827, 828, 666 N.Y.S.2d 556, 689 N.E.2d 526 [1997] ; People v. Ward, 128 A.D.3d 485, 485, 8 N.Y.S.3d 333 [1st Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ). Defendant did not preserve his constitutional challenge to the court's ruling precluding him from cross-examining one of the witnesses on the underlying facts of her prior conviction, and we decline to review it in the interest of justice.
Defendant's challenges to the People's comments on summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find that the comments were not so pervasive or egregious as to warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). In any event, any error was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). We perceive no basis for reducing the sentence.