People v. Speaks

124 A.D.3d 689, 1 N.Y.S.3d 257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 2015
• Docket: 2012-09408
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered October 9, 2012, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeals 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 defendant’s contention that the lineup was unduly suggestive is without merit. There is no requirement that a defendant who participates in a lineup be placed among individuals who are nearly identical to him (see People v Chipp, 75 NY2d 327 [1990]; People v Villacreses, 12 AD3d 624 [2004]). The defendant’s contention that there was a height difference between him and the other lineup participants is unpreserved for appellate review (see CPL 470.50 [2]). In any event, photographs of the lineup introduced into evidence at the hearing confirm that the lineup participants were seated so as to minimize any height disparities (see People v Villacreses, 12 AD3d at 624; People v Huggins, 292 AD2d 543 [2002]). The photographs also demonstrate that the fillers sufficiently resembled the defendant (see People v Villacreses, 12 AD3d at 624; People v Snyder, 304 AD2d 776 [2003]). Skin tone is only one of the factors to be considered in deciding “reasonable similarity” (People v Villacreses, 12 AD3d at 625 [internal quotation marks omitted]; see People v Miller, 199 AD2d 422, 423 [1993]), and differences in skin tone alone will not render a lineup unduly suggestive (see People v Villacreses, 12 AD3d at 624; People v Pointer, 253 AD2d 500 [1998]).

The defendant’s contention that the People failed to present legally sufficient evidence to sustain his convictions of robbery in the first degree and robbery in the second degree (Penal Law §§ 160.15 [1]; 160.10 [1]) is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see Penal Law § 160.00 [2]; People v Smith, 87 AD3d 920 [2011], affd 22 NY3d 1092 [2014]; People v Peters, 69 AD3d 765 [2010]). 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 NY3d 342 [2007]), 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 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). 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 NY3d 633 [2006]).

We agree with our dissenting colleague that certain cases warrant, upon the defendant’s request and in the exercise of the court’s discretion, expert testimony regarding eyewitness identification (see generally People v LeGrand, 8 NY3d 449, 452, 454-457 [2007]). Generally, these are cases which “ £turn[ ] on the accuracy of eyewitness identifications [with] little or no corroborating evidence connecting the defendant to the crime’ ” (People v Rhodes, 115 AD3d 681, 681-682 [2014], quoting People v LeGrand, 8 NY3d at 452). Here, the defendant did not seek to offer expert testimony, and he does not raise that issue on appeal. Moreover, this record reveals that there was sufficient corroborating evidence connecting the defendant to the crime (see People v Rhodes, 115 AD3d at 681-682). In addition to identifications by three eyewitnesses to the robbery, the People admitted surveillance video of the defendant, placing him near the scene shortly before the robbery, and then leaving the scene moments after the robbery.

The defendant failed to preserve for appellate review his contention that the testimony of Detective Michael Henry recounting a description of the perpetrator given by a nontestifying witness, Joel Anderson, violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution (US Const 6th Amend). The defendant did not object to the testimony on those specific grounds; he raised only a hearsay objection to this testimony (see People v Walker, 70 AD3d 870, 871 [2010]; People v Chandler, 59 AD3d 562 [2009]). In any event, the defendant’s contention is without merit. The jury was specifically instructed not to consider this description for its truth, and the description was properly admitted for the relevant, nonhearsay purpose of “establishing the reasons behind the detective’s actions, and to complete the narrative of events leading to the defendant’s arrest” (People v Ragsdale, 68 AD3d 897, 897-898 [2009]; cf. People v Rosario, 100 AD3d 660, 661 [2012]). Contrary to the view of our dissenting colleague, we find that the People sufficiently established a connection between Anderson’s description and subsequent police conduct. Anderson’s general description of the perpetrator, as distinct from a direct identification of the defendant, led to successive police investigatory conduct such as interviewing other witnesses, including a witness who identified the defendant at trial, and procuring the surveillance video of the defendant (cf. People v Berry, 49 AD3d 888, 888-889 [2008]; People v McEaddy, 41 AD3d 877, 879 [2007]). Thus, the Supreme Court did not err in admitting Anderson’s description of the perpetrator for a limited nonhearsay purpose (see People v Ragsdale, 68 AD3d at 897-898).

The defendant’s contentions that Detective Henry’s testimony regarding the description of the perpetrator given by the People’s witness Christine Mateo constituted improper bolstering and inadmissible hearsay are also unpreserved for appellate review, as the defendant did not object to that testimony (see People v Walker, 70 AD3d at 871; People v Chandler, 59 AD3d 562 [2009]). In any event, these contentions are without merit. Much like Detective Henry’s testimony about the general description of the perpetrator given by the nontestifying witness Anderson, the detective recounted only a general description given by Mateo, who later testified for the People and identified the defendant in court. We find that Mateo’s general description of the perpetrator was properly admitted for the relevant, nonhearsay purpose of “establishing the reasons behind the detective’s actions, and to complete the narrative of events leading to the defendant’s arrest” (People v Ragsdale, 68 AD3d at 897-898), and it did not constitute improper bolstering (see People v Rosario, 100 AD3d at 661; cf. People v Bacenet, 297 AD2d 817, 818 [2002]).

The defendant’s remaining contentions are without merit.

Dillon, J.P, Chambers, and Maltese, JJ., concur.