PEOPLE v. ALLEN (2024)

Judgment, Supreme Court, New York County (Gilbert C. Hong, J.), rendered November 22, 2019, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to 2 to 4 years, unanimously affirmed.

The People presented clear and convincing evidence of an independent basis for an in-court identification of defendant by the witness, a store manager who greeted defendant before he took a tote bag from the store (People v. Rivera, 132 A.D.3d 530, 18 N.Y.S.3d 36 [1st Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016]).  The witness's hearing testimony established that she was standing about 15 feet away from defendant when she greeted him in the entrance of the well-lit store, had an unobstructed view of defendant for two or three seconds, and remembered defendant's green sweater and the strong smell of popcorn he was carrying (see People v. Williams, 222 A.D.2d 149, 153, 646 N.Y.S.2d 665 [1st Dept. 1996], lv denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346 [1996];  Matter of Jason V., 171 A.D.2d 447, 567 N.Y.S.2d 30 [1st Dept. 1991]).  Additionally, the witness identified defendant in a photo array, which, though not admitted at trial, was not unduly suggestive (see People v. Hutter, 143 A.D.3d 574, 574–575, 41 N.Y.S.3d 211 [1st Dept. 2016], lv denied 28 N.Y.3d 1125, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016];  see also People v. Rosales, 216 A.D.2d 162, 163, 628 N.Y.S.2d 656 [1st Dept. 1995], lv denied 86 N.Y.2d 846, 634 N.Y.S.2d 455, 658 N.E.2d 233 [1995]).  In any event, any error was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in or fully explained by the record, which may not be addressed on appeal in the absence of a CPL 440.10 motion (see People v. Maffei, 35 N.Y.3d 264, 269–270, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020]).  To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).