PEOPLE v. DAVIS (2005)

 On appeal from a judgment convicting him following a jury trial of two counts of robbery in the third degree (Penal Law § 160.05) based on two separate incidents, defendant contends that the identification procedure used after each incident was unduly suggestive, thereby tainting the identifications of defendant at trial.   With respect to the first incident, we conclude that the photo array, depicting defendant with an eye color different from the other five subjects, “was not so suggestive as to give rise to ‘a very substantial likelihood of irreparable misidentification’ ” (People v. Burton, 226 A.D.2d 1073, 1073, 642 N.Y.S.2d 123, lv. denied 88 N.Y.2d 934, 647 N.Y.S.2d 167, 670 N.E.2d 451, quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247) and did not “ ‘create a substantial likelihood that the defendant would be singled out for identification’ ” (People v. Lee, 96 N.Y.2d 157, 163, 726 N.Y.S.2d 361, 750 N.E.2d 63, quoting People v. Chipp, 75 N.Y.2d 327, 336, 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).   With respect to the second incident, we further conclude, however, that the proof at the Wade hearing failed to establish that the showup identification procedure was proper.   There was no evidence presented at the Wade hearing to establish when the alleged crime was committed and thus nothing established that the showup procedure was conducted “in close geographic and temporal proximity to the crime ” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 [emphasis added];  cf. People v. Seegars, 172 A.D.2d 183, 186, 568 N.Y.S.2d 361, appeal dismissed 78 N.Y.2d 1069, 576 N.Y.S.2d 216, 582 N.E.2d 599).   Rather, the police officer testified that the procedure was conducted in temporal proximity to the complainant's arrival at the police station to report the crime.   Any error in admitting identification testimony resulting from the improper showup procedure was harmless beyond a reasonable doubt, however, because defendant conceded that he was the person with the complainant when the crime was allegedly committed and therefore identification was not at issue at trial (see People v. Porter, 256 A.D.2d 816, 817-818, 682 N.Y.S.2d 268).

 Contrary to the contention of defendant, he received effective assistance of counsel.   Defendant contends that counsel erred in failing to challenge a particular juror and in failing to oppose the People's motion for consolidation pursuant to CPL 200.20(2)(b) and (c).  There was no basis to challenge the juror for cause, and under the circumstances of this case, the failure to challenge a particular juror does not indicate ineffectiveness of counsel (see People v. Thomas, 244 A.D.2d 271, 664 N.Y.S.2d 769, lv. denied 91 N.Y.2d 898, 669 N.Y.S.2d 12, 691 N.E.2d 1038;  see also People v. Turck, 305 A.D.2d 1072, 1073, 758 N.Y.S.2d 895, lv. denied 100 N.Y.2d 566, 763 N.Y.S.2d 824, 795 N.E.2d 50).   Nor did defense counsel's failure to oppose the consolidation motion constitute ineffective assistance of counsel.  “Defense counsel had a discernible strategy, and it is not for this Court ‘to second-guess whether a course chosen by [defense] counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation’ ” (People v. Barnes, 305 A.D.2d 1095, 1095-1096, 759 N.Y.S.2d 717, lv. denied 100 N.Y.2d 592, 766 N.Y.S.2d 167, 798 N.E.2d 351, quoting People v. Satterfield, 66 N.Y.2d 796, 799-800, 497 N.Y.S.2d 903, 488 N.E.2d 834).   In any event, County Court did not abuse its discretion in granting consolidation pursuant to section 200.20(2)(c) (see People v. Allah, 283 A.D.2d 436, 725 N.Y.S.2d 659;  see generally People v. Lane, 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456).   We conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Defendant has failed to preserve for our review his contention that prosecutorial misconduct on summation deprived him of a fair trial (see People v. Perez, 298 A.D.2d 935, 937, 747 N.Y.S.2d 654, lv. denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   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: