PEOPLE v. CONCEPCION (2009)

Judgment, Supreme Court, Bronx County (Michael Gross, J. at hearing;  John W. Carter, J. at jury trial and sentence), rendered November 23, 2007, convicting defendant of robbery in the first degree (four counts), robbery in the second degree (two counts) and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   Under the particular circumstances, the single-photo showup conducted at a police station did not create a substantial likelihood of irreparable misidentification.   Even assuming, without deciding, that this procedure was inappropriate under People v. Riley, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520 [1987] because of its location, notwithstanding the fact that it occurred approximately an hour after the crime, we nevertheless conclude that it was confirmatory of an untainted identification the victims had already made (see e.g. People v. Gilbert, 295 A.D.2d 275, 745 N.Y.S.2d 155 [2002], lv. denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83 [2002] ).   The victims had already pointed defendant out to the police, on the street, immediately after the robbery.   Although it was a different team of officers who chased defendant, arrested him and recovered the robbery weapon, the circumstances, including the very specific and accurate description provided by the victims before the photo showup, preclude any reasonable possibility that defendant was not the same person the victims had identified.   In any event, any error was harmless in view of the overwhelming circumstantial evidence, independent of identification testimony, establishing defendant's guilt.

Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).   To the extent there were improprieties, they did not deprive defendant of a fair trial.   We similarly reject that portion of defendant's ineffective assistance of counsel claim that relates to the absence of objections to the prosecutor's summation.

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record concerning counsel's strategic decisions (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).   The record suggests that counsel had strategic reasons for the conduct challenged on appeal, relating to the fact that defendant's defense emphasized claims of deliberate misidentification and police misconduct rather than simple mistaken identity.   On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We perceive no basis for reducing the sentence.