PEOPLE v. LACROSS (2019)

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 robbery in the first degree (Penal Law § 160.15[3]). We reject defendant's contention that the photo array from which a witness identified him was unduly suggestive, thereby tainting that witness's subsequent in-court identification of defendant. “[A]lthough [ ]defendant was the only person depicted in a red shirt in the photo array, it was ‘not so distinctive as to be conspicuous’ ” (People v. Lundy, 165 A.D.3d 1626, 1627, 85 N.Y.S.3d 665 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019]; see People v. Mead, 41 A.D.3d 1306, 1307, 838 N.Y.S.2d 303 [4th Dept. 2007], lv denied 9 N.Y.3d 963, 848 N.Y.S.2d 31, 878 N.E.2d 615 [2007]).

Defendant's challenge to the legal sufficiency of the evidence with respect to whether he used or threatened to use a dangerous instrument is also without merit. “[T]he victim's testimony that defendant removed a knife from his pocket immediately before asking for money is legally sufficient to establish that defendant possessed a dangerous instrument” (People v. Simmons, 128 A.D.3d 1379, 1379, 7 N.Y.S.3d 788 [4th Dept. 2015], lv denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015]). Further, the jury could have reasonably concluded that, by doing so, defendant was making an implied threat to use the knife against the victim (see id. at 1380, 7 N.Y.S.3d 788; People v. Espada, 94 A.D.3d 451, 452, 941 N.Y.S.2d 151 [1st Dept. 2012], lv denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 [2012]; People v. Mitchell, 59 A.D.3d 739, 739–740, 874 N.Y.S.2d 226 [2d Dept. 2009], lv denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009]). “[A]ny inconsistency between the victim's trial testimony and the victim's testimony from prior proceedings was not so great as to render his trial testimony incredible as a matter of law” (Simmons, 128 A.D.3d at 1380, 7 N.Y.S.3d 788). Contrary to defendant's additional contention, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see People v. Johnson, 105 A.D.3d 1452, 1452–1453, 963 N.Y.S.2d 911 [4th Dept. 2013], lv denied 21 N.Y.3d 1016, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Finally, the sentence is not unduly harsh or severe.