PEOPLE v. LILI (2024)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 4, 2021, as amended November 9, 2021, convicting defendant, upon his plea of guilty, of two counts of assault in the second degree and sentencing him, as a second violent felony offender, to concurrent terms of five years to be followed by five years of postrelease supervision, unanimously affirmed.

Defendant did not preserve his argument that the motion court improperly relied upon its in camera review of the grand jury minutes in confirming the People's response to defendant's request for a Wade hearing, and we decline to review his claim in the interest of justice (see People v. Cates, 139 A.D.3d 455, 456, 29 N.Y.S.3d 790 [1st Dept. 2016]).

As an alternate holding, we find that the People sufficiently met their burden establishing that the identification at issue was confirmatory and that no hearing was necessary (see generally People v. Rodriguez, 79 N.Y.2d 445, 451–453, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992];  People v. Addison, 209 A.D.3d 504, 176 N.Y.S.3d 246 [1st Dept. 2022], lv denied 39 N.Y.3d 1140, 188 N.Y.S.3d 451, 209 N.E.3d 1277 [2023]).  The People's papers in response to defendant's omnibus motion described how the victim trailed his assailant immediately following the attack and never lost sight of his attacker.  The victim, while following his attacker, placed a “911” call to report the assault that occurred just minutes earlier, and that shortly thereafter, when the police met up with the victim, the victim pointed out the defendant to the police (see e.g. People v. Bayron, 119 A.D.3d 444, 988 N.Y.S.2d 495 [1st Dept. 2014], lv denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 [2015]).  Furthermore, Supreme Court properly considered the evidence presented to the grand jury in denying the motion for a hearing (see People v. Addison, 209 A.D.3d at 504, 176 N.Y.S.3d 246;  People v. Thomas, 190 A.D.3d 591, 136 N.Y.S.3d 726 [1st Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 541, 170 N.E.3d 415 [2021]).  While the People's Automatic Discovery Form indicated that a “show up” identification procedure was involved, under the circumstances, no basis exists to support an inference that the victim's identification of the defendant was potentially tainted by, or a product of a state-sponsored pretrial identification procedure (cf.  People v. Dixon, 85 N.Y.2d 218, 222–223, 623 N.Y.S.2d 813, 647 N.E.2d 1321 [1995]).