PEOPLE v. McCRAY (2002)

Judgment, Supreme Court, New York County (Charles Solomon, J. at suppression hearing;  Frederic Berman, J. at jury trial and sentence), rendered February 8, 1996, convicting defendant of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Issues of identification, including the weight to be given to inconsistencies, were properly considered by the jury and there is no basis upon which to disturb its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Since the victim spoke poor English, many of the purported inconsistencies in his testimony and his prior statements were the product of a language barrier.

The court properly denied defendant's motion to suppress identification testimony.   While the initial showup at a subway station occurred two days after the robbery, it occurred shortly after the victim had independently recognized his assailant without police involvement.   Therefore, the showup was merely confirmatory, as was the subsequent showup at the precinct (see People v. Gilbert, 295 A.D.2d 275, 745 N.Y.S.2d 155;  People v. Summers, 250 A.D.2d 412, 673 N.Y.S.2d 107, lv. denied 92 N.Y.2d 931, 680 N.Y.S.2d 472, 703 N.E.2d 284).   The use of a showup to obtain a prompt and reliable identification was justified, not by the showup's proximity to the arrest (compare, People v. Johnson, 81 N.Y.2d 828, 595 N.Y.S.2d 385, 611 N.E.2d 286), but by its proximity to the victim's independent recognition of defendant.

Defendant's remaining contention was previously rejected by this Court upon defendant's motion for a reconstruction proceeding and there is no basis upon which to depart from that determination (see e.g. People v. Alvarado, 269 A.D.2d 104, 701 N.Y.S.2d 897, lv. denied 94 N.Y.2d 916, 708 N.Y.S.2d 355, 729 N.E.2d 1154).