PEOPLE v. DEVINE (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him following a jury trial of robbery in the third degree (Penal Law § 160.05), defendant contends that County Court erred in determining following a pretrial hearing that the bank teller who witnessed the robbery had an independent basis for her in-court identification of defendant. We reject that contention. “[E]ven when an identification is the product of a suggestive pretrial identification procedure, a witness will nonetheless be permitted to identify a defendant in court if that identification is based upon an independent source” (People v. Campbell, 200 A.D.2d 624, 625, 606 N.Y.S.2d 736 [2d Dept. 1994], lv denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299 [1994]; see People v. Woody, 160 A.D.3d 1362, 1363, 76 N.Y.S.3d 297 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018]). Factors to consider in determining whether a witness has a sufficiently reliable independent basis for an identification include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation” (Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 [1972]; see People v. Lopez, 85 A.D.3d 1641, 1641, 924 N.Y.S.2d 871 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011]). Here, the bank teller's testimony established that her attention was on defendant during the entire robbery, that she was wearing her glasses while she observed him, that defendant stood only four feet from her, and that there were no lighting issues or obstructions that interfered with her ability to see defendant (see People v. Mallory, 126 A.D.2d 750, 751, 511 N.Y.S.2d 139 [2d Dept. 1987]; People v. Magee, 122 A.D.2d 227, 228, 504 N.Y.S.2d 758 [2d Dept. 1986]). The bank teller received biannual training on the responsibility of bank tellers during bank robberies and employed that training to provide police with a thorough and accurate description of defendant's race, gender, and clothing (see People v. Range, 199 A.D.3d 1356, 1357, 154 N.Y.S.3d 540 [4th Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 711, 181 N.E.3d 1139 [2022]). Consequently, the court's determination is “supported by ‘sufficient evidence’ in the record” (Lopez, 85 A.D.3d at 1642, 924 N.Y.S.2d 871, quoting People v. Yukl, 25 N.Y.2d 585, 588, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970]; see People v. Williams, 115 A.D.3d 1344, 1345, 982 N.Y.S.2d 675 [4th Dept. 2014]).

Defendant's contention that the conviction is not supported by legally sufficient evidence on the issue of identity is not preserved for our review (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]). 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 generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

We reject defendant's contention that the People failed to establish his identity as the caller in a recorded jail telephone call. The call was made from an area of the jail in which defendant was located, and the caller identified himself as “Sammie” and stated that he had “hit” an “M&T joint.” Under these circumstances, we conclude that defendant's identity as the caller is amply proven by the “substance of the conversation itself” (People v. Lynes, 49 N.Y.2d 286, 292, 425 N.Y.S.2d 295, 401 N.E.2d 405 [1980]; see People v. Shapiro, 227 A.D.2d 506, 507, 643 N.Y.S.2d 143 [2d Dept. 1996], lv denied 88 N.Y.2d 1024, 651 N.Y.S.2d 23, 673 N.E.2d 1250 [1996]). Contrary to defendant's further contention that the court erred in admitting the jail call because it was the fruit of unlawful police conduct, we conclude that the jail call “ ‘sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity’ ” (People v. Smith, 202 A.D.3d 1492, 1495, 162 N.Y.S.3d 631 [4th Dept. 2022], quoting People v. Arnau, 58 N.Y.2d 27, 35, 457 N.Y.S.2d 763, 444 N.E.2d 13 [1982], cert denied 468 U.S. 1217, 104 S.Ct. 3585, 82 L.Ed.2d 883 [1984]; see People v. Ashford, 142 A.D.3d 1371, 1372, 38 N.Y.S.3d 347 [4th Dept. 2016]).

We also reject defendant's contention that the court erred in admitting in evidence GPS location data generated by a device attached to currency that was taken during the robbery and recovered from defendant. Although the court concluded that the officers did not have probable cause to search defendant at that time, the court further concluded that the officers had reasonable suspicion to detain defendant, and the court properly admitted in evidence the location data that was created by the device prior to any improper conduct by the apprehending officers (see People v. Richardson, 155 A.D.3d 1595, 1596, 66 N.Y.S.3d 757 [4th Dept. 2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018]). Moreover, the location data was cumulative of unchallenged GPS information from defendant's ankle bracelet that was also introduced in evidence at trial (see e.g. People v. Pizarro, 151 A.D.3d 1678, 1680-1681, 57 N.Y.S.3d 283 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017]; People v. Wilson, 267 A.D.2d 1061, 1062, 700 N.Y.S.2d 787 [4th Dept. 1999], lv denied 94 N.Y.2d 908, 707 N.Y.S.2d 393, 728 N.E.2d 992 [2000]), and any error in admitting it is harmless inasmuch as the evidence of defendant's guilt is overwhelming and there is no reasonable possibility that the verdict would have been different if the location data had been suppressed (see People v. Jiles, 158 A.D.3d 75, 81, 68 N.Y.S.3d 787 [4th Dept. 2017], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018]; see generally People v. Allen, 24 N.Y.3d 441, 450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014]; People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

Finally, the sentence is not unduly harsh or severe.