PEOPLE v. BELL (1999)

 County Court properly denied defendant's motion to suppress identification testimony.   The People met their initial burden of establishing the reasonableness of the police conduct and lack of undue suggestiveness of the photo array, and defendant failed to meet his “ultimate burden of proving that the procedure was unduly suggestive” (People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   Because defendant failed to assert the affirmative defense that the weapon displayed was not loaded or capable of firing (see, Penal Law § 160.15[4] ), the court properly denied his request to charge the jury on the lesser included offense of robbery in the second degree (Penal Law § 160.10[2][b];  see, People v. Cotarelo, 71 N.Y.2d 941, 942-943, 528 N.Y.S.2d 816, 524 N.E.2d 137;  People v. Baskerville, 60 N.Y.2d 374, 380-382, 469 N.Y.S.2d 646, 457 N.E.2d 752).   Contrary to the contention of defendant, the evidence that he fled on foot when a uniformed officer yelled, “Freeze, Eugene”, is legally sufficient to support the conviction of resisting arrest (Penal Law § 205.30;  see, CPL 120.80[2];  see generally, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Furthermore, evidence that defendant possessed keys that unlocked the door and started the ignition of the stolen vehicle is legally sufficient to establish that he exercised dominion and control over the vehicle to support the conviction of criminal possession of stolen property in the fourth degree (Penal Law § 165.45[1];  see, People v. Manini, 79 N.Y.2d 561, 573-574, 584 N.Y.S.2d 282, 594 N.E.2d 563;  People v. Hadley, 67 A.D.2d 259, 262, 415 N.Y.S.2d 719).   The court properly exercised its discretion in determining that defendant could be cross-examined regarding certain prior crimes and bad acts that bore “logically on [defendant's] credibility as a witness” (People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: