PEOPLE v. DAVIS (2021)

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, inter alia, murder in the second degree (Penal Law § 125.25 [1]) and attempted murder in the second degree (§§ 110.00, 125.25 [1]). Contrary to defendant's contention, his conviction on the murder and attempted murder counts is supported by legally sufficient evidence (see People v. Rouse, 34 N.Y.3d 269, 274-275, 117 N.Y.S.3d 634, 140 N.E.3d 957 [2019]; People v. Alligood, 192 A.D.3d 1508, 1508-1509, 140 N.Y.S.3d 809 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 679, 172 N.E.3d 791 [2021]; cf. CPL 300.40). Furthermore, viewing the evidence in light of the elements of the crimes 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 generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Contrary to defendant's contentions, County Court properly refused to suppress identification testimony by the teenage eyewitnesses (see People v. Marte, 12 N.Y.3d 583, 586-589, 884 N.Y.S.2d 205, 912 N.E.2d 37 [2009], cert denied 559 U.S. 941, 130 S.Ct. 1501, 176 L.Ed.2d 117 [2010]; see also People v. Jackson, 90 A.D.3d 519, 519, 934 N.Y.S.2d 311 [1st Dept. 2011], lv denied 19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012]; People v. Elliot, 283 A.D.2d 183, 183-184, 726 N.Y.S.2d 7 [1st Dept. 2001], lv denied 96 N.Y.2d 901, 730 N.Y.S.2d 798, 756 N.E.2d 86 [2001]). Moreover, given the absence of any “substantial issues as to the constitutionality of the [subject identification procedures],” the court properly denied defendant's request to call those teenagers to testify at the suppression hearing (People v. Chipp, 75 N.Y.2d 327, 338, 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]). Indeed, defendant sought to call those teenagers at the suppression hearing only to demonstrate suggestiveness arising from the actions of private citizens, which is not a cognizable basis for suppressing identification testimony on due process grounds (see Marte, 12 N.Y.3d at 586-589, 884 N.Y.S.2d 205, 912 N.E.2d 37).

Contrary to defendant's further contentions, the court's Sandoval ruling was not an abuse of discretion (see People v .Cotton, 184 A.D.3d 1145, 1146-1147, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020]), and the imposition of consecutive terms of imprisonment on the murder and attempted murder counts was not illegal (see People v. McKnight, 16 N.Y.3d 43, 47-50, 917 N.Y.S.2d 594, 942 N.E.2d 1019 [2010]; People v. Smith, 171 A.D.3d 1102, 1105-1106, 98 N.Y.S.3d 313 [2d Dept. 2019], lv denied 33 N.Y.3d 1073, 105 N.Y.S.3d 31, 129 N.E.3d 351 [2019]). Defendant's remaining contentions do not warrant reversal or modification of the judgment.