PEOPLE v. NIBBS (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jill Konviser, J.), rendered April 4, 2019, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

The defendant was convicted, after a jury trial, of criminal possession of a weapon in the second degree in connection with a shooting incident in Brooklyn.  At trial, an eyewitness, who testified that he knew the defendant as “T,” identified the defendant as the shooter.  The Supreme Court, after a hearing, also permitted the People to introduce the grand jury testimony of an unavailable witness, who had also identified the defendant as the shooter.

The Supreme Court properly denied, after a hearing, that branch of the defendant's omnibus motion which was to suppress the evidence of a pretrial lineup identification on the ground that it was tainted by undue suggestion (see People v. Bonilla, 151 AD3d 735, 736;  People v. Rodriguez, 17 AD3d 267, 268).  The fact that the witness who identified the defendant in the lineup had inadvertently seen a side-profile photograph of the defendant in a police folder did not violate the defendant's due process rights, since the evidence at the hearing showed that the accidental viewing was not a police-arranged procedure (see People v. Brown, 155 AD3d 509, 510;  People v. Stevens, 44 AD3d 882, 883).  The passage of at least six months between the display of any photographs to the eyewitness and his identification of the defendant at the lineup also attenuated any possible taint of suggestiveness (see People v. Choi, 137 AD3d 808;  People v. Butts, 279 A.D.2d 587).  Moreover, the court properly determined “that the [witness] was impervious to suggestion due to his familiarity with the defendant” (People v. Richardson, 200 AD3d 984, 985;  see People v. Coleman, 73 AD3d 1200, 1202), and therefore properly denied that branch of the defendant's omnibus motion which was to preclude identification testimony on that ground as well (see People v. Fields, 212 AD3d 648, 649).

After conducting a Sirois hearing (see People v. Sirois, 92 A.D.2d 618;  Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405), the Supreme Court correctly determined that a previously cooperative eyewitness had been rendered unavailable due to misconduct by the defendant, and thus, properly permitted the People to introduce portions of this eyewitness’ grand jury testimony and sworn audiotaped statement at trial (see People v. Cotto, 92 N.Y.2d 68;  People v. Geraci, 85 N.Y.2d 359;  People v. Evans, 116 AD3d 879, 880;  People v. Tatum, 35 AD3d 511).  In any event, any alleged error was harmless.  There was overwhelming evidence of the defendant's guilt, and no reasonable possibility that any error in curtailing the defendant's ability to cross-examine the witness affected the jury's verdict (see People v. Wilkinson, 185 AD3d 734, 737).

Contrary to the defendant's contention, the Supreme Court properly permitted the People to introduce into evidence a recording of a telephone call that he made while he was incarcerated, in which he was addressed as “T,” as the probative value of the recording outweighed any prejudice to the defendant (see People v. Porter, 210 AD3d 1012, 1013;  People v. Carmona, 185 AD3d 600, 603).  The court's limiting instructions regarding this evidence also “adequately minimized any resulting prejudice” (People v. Doane, 212 AD3d 875, 881).

The defendant's contention that Penal Law § 265.03 is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v Bruen (––– U.S. ––––, 142 S Ct 2111) is unpreserved for appellate review, as the defendant did not raise a constitutional challenge before the Supreme Court (see People v. Cabrera, ––– NY3d ––––, ––––, 2023 N.Y. Slip Op 05968, *3–8).  In any event, the defendant's contention is without merit.  The Bruen decision “had no impact on the constitutionality of New York State's criminal possession of a weapon statutes” (People v. Manners, 217 AD3d 683, 686;  see People v. Joyce, 219 AD3d 627, 628).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contentions are without merit.

DUFFY, J.P., MILLER, WOOTEN and LOVE, JJ., concur.