PEOPLE v. ELMORE (2005)

 Defendant appeals from a judgment convicting him following a jury trial of robbery in the first degree (Penal Law § 160.15 [4] ).   The conviction arises out of defendant's participation in the gunpoint robbery of a pizza delivery person as he attempted to deliver a pizza.   Supreme Court properly denied that part of the motion of defendant seeking suppression of physical evidence seized from him during a stop and frisk.   The officer who conducted the stop and frisk encountered defendant at the address where the pizza delivery order originated.   Defendant matched the description of one of the robbery suspects, and the officer encountered him within minutes of the robbery and a short distance from the location of the robbery.   Under those circumstances, the officer was justified in stopping defendant based upon a reasonable suspicion that defendant was one of the robbers (see People v. Daniels, 6 A.D.3d 245, 246, 776 N.Y.S.2d 10, lv. denied 3 N.Y.3d 658, 782 N.Y.S.2d 700, 816 N.E.2d 573;  People v. Shakur, 233 A.D.2d 793, 795, 650 N.Y.S.2d 388, lv. denied 89 N.Y.2d 1041, 659 N.Y.S.2d 872, 681 N.E.2d 1319).   The frisk of defendant was warranted based on the report that the robbery suspects were armed with handguns (see People v. Wiley, 209 A.D.2d 361, 618 N.Y.S.2d 798, lv. denied 85 N.Y.2d 944, 627 N.Y.S.2d 1007, 651 N.E.2d 932;  see also People v. Desmond, 289 A.D.2d 1011, 734 N.Y.S.2d 787, lv. denied 97 N.Y.2d 753, 742 N.Y.S.2d 613, 769 N.E.2d 359).   The court also properly denied that part of defendant's motion seeking suppression of the robbery victim's voice identification.   The officer was justified in detaining defendant in order to conduct a showup identification (see People v. Barnes, 4 A.D.3d 433, 771 N.Y.S.2d 359, lv. denied 3 N.Y.3d 636, 782 N.Y.S.2d 407, 816 N.E.2d 197), and the robbery victim's identification of defendant by his voice was not the result of any suggestive police procedures but, rather, was the result of defendant's spontaneous outburst (see People v. Shepard, 162 A.D.2d 226, 556 N.Y.S.2d 594, lv. denied 76 N.Y.2d 944, 563 N.Y.S.2d 73, 564 N.E.2d 683).

 We reject defendant's further contention that the verdict is against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although defendant presented an alibi defense, the conflicting testimony merely raised issues of credibility for the jury (see People v. Melendez, 213 A.D.2d 1037, 625 N.Y.S.2d 977).   We also reject the contention of defendant that the court erred in denying his request to charge the jury with respect to the difficulty of making a reliable voice identification (see generally People v. Collins, 60 N.Y.2d 214, 218, 469 N.Y.S.2d 65, 456 N.E.2d 1188).  “The charge, as given, sufficiently set forth both the factors to be considered in assessing the veracity of the identification witness's testimony and the fact that identity must be proven beyond a reasonable doubt” (People v. Dyer, 245 A.D.2d 299, 299, 667 N.Y.S.2d 273, lv. denied 91 N.Y.2d 925, 670 N.Y.S.2d 407, 693 N.E.2d 754;  see People v. Wright, 292 A.D.2d 638, 639, 739 N.Y.S.2d 605;  CJI2d[NY] Identification-One Witness).   Nor did the court err in instructing the jury with respect to the permissible inferences that may arise from the recent and exclusive possession of stolen property (see People v. Combo, 275 A.D.2d 936, 937, 713 N.Y.S.2d 414, lv. denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145;  see generally People v. Baskerville, 60 N.Y.2d 374, 383, 469 N.Y.S.2d 646, 457 N.E.2d 752).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: