PEOPLE v. DIENDERE (2018)

Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered November 29, 2016, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's determinations concerning credibility and identification.  The victim's testimony was corroborated by a chain of evidence, provided by an eyewitness and the police, that linked defendant to the crime.  The jury's mixed verdict does not warrant a different conclusion, because although in performing our weight of the evidence review, we may consider an alleged factual inconsistency in a verdict (see People v. Rayam, 94 N.Y.2d 557, 563 n., 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ), we nevertheless find it “imprudent to speculate concerning the factual determinations that underlay the verdict” (People v. Horne, 97 N.Y.2d 404, 413, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002];  see also People v. Hemmings, 2 N.Y.3d 1, 5 n., 776 N.Y.S.2d 201, 808 N.E.2d 336 [2004] ).

By effectively conceding the issue at the suppression hearing, and failing to subsequently raise it in any way, defendant failed to preserve his challenge to the victim's showup identification, and we find that the court's suppression ruling was not “in response to protest” (see People v. Miranda, 27 N.Y.3d 931, 932, 30 N.Y.S.3d 600, 50 N.E.3d 224 [2016] ).  We decline to review this claim in the interest of justice.  As an alternative holding, we reject it on the merits.  The victim's showup identification of defendant was justified by spatial and temporal proximity, and it was not conducted under unduly suggestive circumstances (see e. g. People v. Brujan, 104 A.D.3d 481, 482, 960 N.Y.S.2d 421 [1st Dept. 2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013] ).

The court providently exercised its discretion in receiving photographs depicting the eyewitness's view of the assault.  While, as the jury was well aware, the photos were taken under different lighting conditions from those existing at the time of the assault, those differences went to weight rather than admissibility (see People v. Nevado, 22 A.D.3d 383, 802 N.Y.S.2d 171 [1st Dept. 2005], lv denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 [2005] ).