Opinion
2014-06-18
The PEOPLE, etc., respondent, v. Sadiq Abdul WAHHAB, appellant.
Alan Katz, Garden City Park, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Barbara Kornblau of counsel), for respondent.
Alan Katz, Garden City Park, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Barbara Kornblau of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered April 19, 2012, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Robbins, J.), of the suppression of identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the photograph of him included in the photo arrays shown to the complaining witness and his wife did not possess any characteristics that made it stand out from the others in the arrays so as to draw a viewer's attention to it and indicate that a law enforcement official had “ ‘made a particular selection’ ” ( People v. Dailey, 86 A.D.3d 579, 579, 926 N.Y.S.2d 662, quoting People v. Curtis, 71 A.D.3d 1044, 1045, 900 N.Y.S.2d 68). Nor did the law enforcement emblem and text on the border of the photo arrays render them unduly suggestive. Moreover, certain comments made by a detective when showing the arrays to the witnesses were not improper. Accordingly, the hearing court properly denied the suppression of identification testimony.
The defendant contends that the evidence at trial was legally insufficient to support his convictions of the two counts of robbery in the second degree (Penal Law § 160.10[1], [2] ). However, contrary to the defendant's contention, when viewed in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), the evidence was legally sufficient to establish that the defendant forcibly stole property from the complainant ( seePenal Law § 160.10). The defendant's further contention that the evidence of “physical injury,” an element of robbery in the second degree under Penal Law § 160.10(2), was legally insufficient, is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. White, 94 A.D.3d 918, 918, 941 N.Y.S.2d 860). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the complainant sustained physical injury ( seePenal Law § 10.00[9]; People v. Valencia, 50 A.D.3d 1163, 1164, 856 N.Y.S.2d 250;People v. Krotoszynski, 43 A.D.3d 450, 453, 840 N.Y.S.2d 627). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on those counts 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).
The defendant's contention that he was deprived of the right to confront the witnesses against him by the Supreme Court's limitation of his cross-examination of certain prosecution witnesses is without merit ( see People v. Rivera, 98 A.D.3d 529, 529, 948 N.Y.S.2d 912;People v. Baez, 59 A.D.3d 635, 635–636, 873 N.Y.S.2d 216;People v. Stevens, 45 A.D.3d 610, 611, 845 N.Y.S.2d 114).