PEOPLE v. ARMSTRONG (2026)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of kidnapping in the first degree (Penal Law § 135.25 [2] [a]). We reject defendant's contention that Supreme Court erred in determining that the identification of defendant by the victim was confirmatory. “A court's invocation of the ‘confirmatory identification’ exception is ․ tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” (People v. Rodriguez, 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992]; see People v. Colon, 196 A.D.3d 1043, 1045, 149 N.Y.S.3d 732 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 416, 175 N.E.3d 442 [2021]). Here, the People met their burden of establishing that the identification of defendant by the victim was confirmatory by presenting the testimony of a police detective and the recording of defendant's interview with law enforcement, which established that the victim knew defendant well enough to consider him as “an older brother figure” (see Colon, 196 A.D.3d at 1045, 149 N.Y.S.3d 732; People v. Gambale, 158 A.D.3d 1051, 1052, 70 N.Y.S.3d 684 [4th Dept. 2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018]).

Defendant failed to preserve for our review his contention that his guilty plea was not knowing, voluntary and intelligent inasmuch as he withdrew his motion to withdraw his plea and did not thereafter move to vacate the judgment of conviction (see People v. Lorenz, 120 A.D.3d 1528, 1529, 992 N.Y.S.2d 653 [4th Dept. 2014], lv denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 [2014]). This case does not fall within the rare exception to the preservation rule set forth in (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).

Defendant's contention that he was denied effective assistance of counsel is based on matters outside the record, and thus “a CPL 440.10 proceeding is the appropriate forum for reviewing [defendant's] claim[ ]” (People v. Dunn, 229 A.D.3d 1220, 1223, 215 N.Y.S.3d 652 [4th Dept. 2024]).

Finally, we note that both the certificate of disposition and the uniform sentence and commitment form erroneously reflect that defendant was convicted and sentenced at a term of Onondaga County Court, and those documents must therefore be amended to reflect that he was convicted and sentenced at a term of Supreme Court, Onondaga County (see People v. Savino, 239 A.D.3d 1452, 1454, 234 N.Y.S.3d 388 [4th Dept. 2025]; People v. Daniqua S.D., 92 A.D.3d 1226, 1227, 937 N.Y.S.2d 907 [4th Dept. 2012]).