Opinion
2013-06-26
The PEOPLE, etc., respondent, v. Jorge TLATELPA, appellant.
Marianne Karas, Thornwood, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Marianne Karas, Thornwood, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli J.), rendered July 12, 2011, convicting him of attempted murder in the second degree, assault in the first degree, and criminal use of a firearm in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal 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 is affirmed.
The complainant's initial identification of the defendant at the scene of the incident was spontaneous, and not the result of a police-arranged confrontation ( see People v. Duuvon, 77 N.Y.2d 541, 546, 569 N.Y.S.2d 346, 571 N.E.2d 654;People v. Leuthner, 216 A.D.2d 327, 627 N.Y.S.2d 776). The subsequent showup identification made by the complainant was not impermissibly suggestive, as it was conducted in close spatial and temporal proximity to the crime ( see People v. Duuvon, 77 N.Y.2d at 544–545, 569 N.Y.S.2d 346, 571 N.E.2d 654;see also People v. Blanche, 90 N.Y.2d 821, 822, 660 N.Y.S.2d 375, 682 N.E.2d 976). Moreover, the complainant's subsequent viewing of a photograph of the defendant was not impermissibly suggestive ( see People v. Carlton, 85 A.D.3d 1196, 926 N.Y.S.2d 161). Thus, the County Court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, 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), 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 ( see CPL 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 witnesses, 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).
Defense counsel provided meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400). The actions, or inaction, of counsel challenged by the defendant did not constituteineffective assistance of counsel ( see People v. Orengo, 286 A.D.2d 344, 345, 728 N.Y.S.2d 775), and she could not have been ineffective for failing to advance motions or arguments that had no chance of success ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).
The defendant's remaining contention is without merit.