THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CAL WILLIAMS DEFENDANT APPELLANT (2011)

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 a jury verdict of three counts each of robbery in the first degree (Penal Law § 160.15[4] ) and grand larceny in the third degree (§ 155.35), and eight counts of robbery in the second degree (§ 160.10[1] ), in connection with his participation in three separate bank robberies.   In light of the absence of any evidence at the suppression hearing that the police procedures used in creating and presenting photo arrays created a substantial likelihood that defendant was singled out for identification, we reject defendant's contention that County Court erred in refusing to suppress the identification testimony presented at trial (see generally People v. Chipp, 75 N.Y.2d 327, 335-336, cert denied 498 U.S. 833;  People v. Martinez, 298 A.D.2d 897, 897-898, lv denied 98 N.Y.2d 769, cert denied 538 U.S. 963, reh denied 539 U.S. 911).   To the extent that defendant's contention with respect to the alleged insufficiency of the evidence to support the conviction is preserved for our review (see People v. Gray, 86 N.Y.2d 10, 19), we also reject that contention.   Contrary to that part of defendant's contention that is preserved for our review, the testimony of the witness who identified defendant as having participated in the second of the three robberies was not incredible as a matter of law, and we note in any event that defense counsel thoroughly cross-examined her on her ability to identify defendant and the jury nevertheless credited her testimony (see People v. Baker, 30 AD3d 1102, 1102-1103, lv denied 7 NY3d 846).   Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).

We agree with defendant, however, that the aggregate consecutive sentence of imprisonment of 150 years is unduly harsh and severe in light of the absence of any violence or injuries sustained during the robberies.   Because that aggregate consecutive sentence is reduced by operation of law to an aggregate maximum term of 50 years pursuant to Penal Law § 70.30(1)(e)(vi), however, we see no reason to modify the sentence.

Patricia L. Morgan

Clerk of the Court