PEOPLE v. GAY (2022)

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J. at suppression hearing;  Ann M. Donnelly, J. at jury trial and sentencing), rendered October 15, 2012, convicting defendant of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 25 years to life, and order, same court (Judith Lieb, J.), entered on or about July 17, 2020, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  While the evidence was entirely circumstantial, the only reasonable conclusion to be drawn from the totality of the evidence was that defendant was the person who shot the victim.  Although no one saw the shooting, the combination of eyewitness testimony about events immediately before and after it occurred, along with forensic evidence and spatial and temporal factors, abundantly established defendant's guilt.  In particular, the evidence provides no reason to doubt that the incriminating observations made by the eyewitnesses involved the same person.

The court properly denied defendant's motion to suppress identification testimony.  The lineup viewed by an eyewitness was not unduly suggestive (see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162 [2002];  People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990];  People v. Gilbert, 295 A.D.2d 275, 745 N.Y.S.2d 155 [1st Dept. 2002], lv denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83 [2002]).  Unlike the pretrial showing of a photograph described in People v. Marshall, 26 N.Y.3d 495, 25 N.Y.S.3d 58, 45 N.E.3d 954 (2015), the witness's accidental viewing in the prosecutor's office of a photograph of the lineup from which he had already selected defendant was not an identification procedure (see e. g. People v. Jimenez, 232 A.D.2d 210, 647 N.Y.S.2d 947 [1st Dept. 1996], lv denied 89 N.Y.2d 924, 654 N.Y.S.2d 726, 677 N.E.2d 298 [1996]), and thus did not entitle defendant to a further Wade hearing.

Defendant's contention that the police lacked probable cause to arrest him before the lineup is unpreserved, because the suppression court did not “in response to a protest by a party, ․ expressly decide[ ] the question raised on appeal” (People v. Graham, 25 N.Y.3d 994, 996, 10 N.Y.S.3d 172, 32 N.E.3d 387 [2015] [emphasis added];  see People v. Colon, 46 A.D.3d 260, 263, 847 N.Y.S.2d 44 [1st Dept. 2007]), and we decline to review it in the interest of justice.  That contention was also affirmatively waived, and the People were not alerted to the need to develop the record in this regard.  As an alternative holding, we find, to the extent the record permits review, that the police had probable cause to arrest defendant.  This was based on information from an eyewitness who was familiar with defendant, and who made observations that, when coupled with observations made by another eyewitness, warranted a circumstantial inference that defendant was the perpetrator, regardless of the latter witness's ability to make an identification (see generally People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]).

Defendant's arguments concerning the People's opening statement and summation, and as to consciousness of guilt evidence, are unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal.

The court providently exercised its discretion in denying defendant's CPL 440.10 motion claiming ineffective assistance of counsel without granting a hearing (see People v. Samandarov, 13 N.Y.3d 433, 439–440, 892 N.Y.S.2d 823, 920 N.E.2d 930 [2009]).  Initially, we note that although the primary purpose of such a motion is to expand the record, defendant did not do so, by way of attorney affirmation or otherwise, with regard to hearing counsel's failure to raise a Fourth Amendment issue or trial counsel's failure to cross-examine a witness about his description of defendant.  Insofar as defendant's ineffectiveness claims are reviewable, we find that he 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];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant has not shown any reasonable possibility that a challenge to the legality of his arrest would have been successful.  We agree with defendant that the trial court's identification charge should not have indicated that a certain witness identified defendant as “the perpetrator,” where in fact that witness identified defendant as taking certain actions supporting a circumstantial inference of guilt when coupled with other evidence.  However, counsel's failure to object to that charge was not prejudicial since the jury was well aware that no witnesses saw the actual shooting.  Defendant has not shown that any of counsel's other alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case.  Among other things, defendant failed to show that counsel was ineffective in failing to object during the prosecutor's opening statement and summation (see People v. Cass, 18 N.Y.3d 553, 564, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012]), failing to request a consciousness of guilt charge (see People v. Arroyo, 131 A.D.3d 1257, 16 N.Y.S.3d 769 [2d Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015];  People v. Hill, 82 A.D.3d 1715, 1716, 919 N.Y.S.2d 688 [4th Dept. 2011], lv denied 17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804 [2011]), or failing to call an expert in eyewitness identifications at trial (see People v. Everette, 148 A.D.3d 513, 515, 49 N.Y.S.3d 443 [1st Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017]).