PEOPLE v. TERBORG (2006)

Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5] ), criminal mischief in the fourth degree (§ 145.00 [1] ) and unauthorized use of a vehicle in the third degree (§ 165.05[1] ).   Contrary to defendant's contention, the verdict is not against the weight of the evidence with respect to the count charging criminal possession of stolen property (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence with respect to the conviction of criminal mischief (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and that contention is lacking in merit in any event (see Matter of Carlos M., 32 A.D.3d 686, 687, 820 N.Y.S.2d 581;   People v. Bodine, 231 A.D.2d 840, 648 N.Y.S.2d 394, lv. denied 89 N.Y.2d 862, 653 N.Y.S.2d 285, 675 N.E.2d 1238;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We conclude, however, that the verdict is against the weight of the evidence with respect to criminal mischief because the jury failed to give the evidence the weight it should be accorded on the issue of defendant's intent (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although defendant may have acted recklessly with respect to the result, i.e., the damage to the victim's car, the evidence weighs heavily in favor of a finding that defendant did not specifically intend to damage the car (see People v. Ruiz, 159 A.D.2d 656, 657, 553 N.Y.S.2d 173, lv. denied 76 N.Y.2d 742, 558 N.Y.S.2d 904, 557 N.E.2d 1200;  cf. People v. Gianni, 303 A.D.2d 1012, 756 N.Y.S.2d 688, lv. denied 100 N.Y.2d 581, 764 N.Y.S.2d 391, 796 N.E.2d 483).   We therefore modify the judgment by reversing that part convicting defendant of criminal mischief in the fourth degree and dismissing count two of the indictment (see Ruiz, 159 A.D.2d at 657, 553 N.Y.S.2d 173).

 We further agree with defendant that County Court erred in denying his request for a Wade hearing.   The confirmatory identification exception applicable to showup identifications by police officers is confined to those “instances when, as a matter of law, the identification at issue could not be the product of undue suggestiveness” (People v. Boyer, 6 N.Y.3d 427, 431, 813 N.Y.S.2d 31, 846 N.E.2d 461;  see People v. Rodriguez, 79 N.Y.2d 445, 449-450, 583 N.Y.S.2d 814, 593 N.E.2d 268).   Here, the “initial police viewing ․ was fleeting, unreliable and susceptible of misidentification” (Boyer, 6 N.Y.3d at 429, 813 N.Y.S.2d 31, 846 N.E.2d 461), and it is not “clear that the identification could not be mistaken” as a matter of law (id. at 432, 813 N.Y.S.2d 31, 846 N.E.2d 461;  see People v. Pittman, 31 A.D.3d 469, 470, 817 N.Y.S.2d 636;  Matter of Kendell F., 30 A.D.3d 601, 602, 817 N.Y.S.2d 371).   As a result of the error, we remit the matter to County Court “for a Wade hearing to determine whether any police suggestiveness tainted the identification procedure.   If so, defendant is entitled to a new trial [on counts one and three of the indictment] and such further proceedings as the circumstances may warrant.   If the People are successful at the Wade hearing, the judgment of conviction and sentence should be amended to reflect that result” (People v. Dixon, 85 N.Y.2d 218, 225, 623 N.Y.S.2d 813, 647 N.E.2d 1321;  see People v. Brown, 86 N.Y.2d 728, 729, 631 N.Y.S.2d 121, 655 N.E.2d 162;  People v. Mato, 83 N.Y.2d 406, 410-411, 611 N.Y.S.2d 92, 633 N.E.2d 446).

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the facts and on the law by reversing that part convicting defendant of criminal mischief in the fourth degree and dismissing count two of the indictment and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for further proceedings.

MEMORANDUM: