PEOPLE v. KIRKLAND (2008)

 Defendant appeals from a judgment convicting him, following a jury trial, of four counts of robbery in the second degree (Penal Law § 160.10[2][b] ) and one count of attempted robbery in the second degree (§§ 110.00, 160.10[2][b] ).  We reject the contention of defendant that the police lacked reasonable suspicion to stop him.  A police officer testified at the suppression hearing that, within 30 minutes of the robbery, she observed an individual who matched the description of the perpetrator near a vehicle that also matched the description of the perpetrator's vehicle.  We thus conclude that the police had reasonable suspicion to stop defendant based on the totality of the circumstances (see People v. Evans, 34 A.D.3d 1301, 1302, 825 N.Y.S.2d 617, lv. denied 8 N.Y.3d 845, 830 N.Y.S.2d 704, 862 N.E.2d 796;  People v. Casillas, 289 A.D.2d 1063, 1064, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358).

 Contrary to defendant's further contention, Supreme Court properly refused to suppress the showup identifications of defendant by two of the robbery victims.  It is well settled that “[s]howup identifications ‘are strongly disfavored but are permissible if exigent circumstances require immediate identification ․ or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately’ ” (People v. Johnson, 81 N.Y.2d 828, 831, 595 N.Y.S.2d 385, 611 N.E.2d 286;  see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654).  Here, the two showup identifications were conducted approximately one mile from the crime scenes and one hour after the commission of the last robbery, and we conclude that none of the showup identifications was unduly suggestive (see People v. Boyd, 272 A.D.2d 898, 899, 709 N.Y.S.2d 269, lv. denied 95 N.Y.2d 850, 714 N.Y.S.2d 1, 736 N.E.2d 862;  cf. Johnson, 81 N.Y.2d at 831, 595 N.Y.S.2d 385, 611 N.E.2d 286).  Also contrary to defendant's contention, the two photo array identifications of defendant by the two other robbery victims were not unduly suggestive.  The individuals depicted in the two photo arrays have similar physical characteristics, and “the viewer's attention is not drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection” (People v. Rogers, 245 A.D.2d 1041, 1041, 666 N.Y.S.2d 66).

Defendant's contention that the evidence is legally insufficient to support the conviction under count one of the indictment, arising out of the robbery of a convenience store, is not preserved for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).  We reject defendant's further contention that the verdict with respect to that count is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Defendant was not denied effective assistance of counsel inasmuch as none of the errors allegedly committed by defense counsel was so prejudicial as to deprive defendant of a fair trial (see generally People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We reject the further contention of defendant that the court erred in denying his Batson challenge.  Defendant failed to establish “[t]he more difficult aspect of the prima facie case delineated in Batson [, i.e.,] the second element—a showing of ‘facts and other relevant circumstances' that would support an inference of impermissible discrimination” (People v. Childress, 81 N.Y.2d 263, 266, 598 N.Y.S.2d 146, 614 N.E.2d 709;  see People v. Jones, 284 A.D.2d 46, 50, 728 N.Y.S.2d 417, affd. 99 N.Y.2d 264, 755 N.Y.S.2d 43, 784 N.E.2d 1152).  Defendant failed to preserve for our review his contention that the verdict sheet improperly contained the name of the victim and the date and location of each robbery (see People v. Dalcin, 300 A.D.2d 1129, 751 N.Y.S.2d 891, lv. denied 99 N.Y.2d 627, 760 N.Y.S.2d 108, 790 N.E.2d 282). He also failed to preserve for our review his contention that he was improperly sentenced as a second felony offender (see People v. Anderson, 35 A.D.3d 1209, 825 N.Y.S.2d 893, lv. denied 8 N.Y.3d 919, 834 N.Y.S.2d 509, 866 N.E.2d 455).  We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).  We reject defendant's contention that the court erred in imposing consecutive sentences on counts three and four of the indictment (see People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29), as well as defendant's contention with respect to the imposition of a five-year period of postrelease supervision on count four (see Penal Law § 70.45[2]).  We agree with defendant, however, that the sentence is unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences imposed on each count of robbery in the second degree shall run concurrently with respect to each other (see CPL 470.15[6][b];  People v. Foss, 48 A.D.3d 1219, 852 N.Y.S.2d 534).

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences imposed on each count of robbery in the second degree shall run concurrently with respect to each other and as modified the judgment is affirmed.

MEMORANDUM: