PEOPLE v. JOHN (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered March 30, 2005, convicting him of attempted robbery in the first degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.   By decision and order dated March 6, 2007, this Court remitted the matter to the Supreme Court, Queens County, for a de novo suppression hearing and a report thereafter on those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony, and held the appeal in abeyance in the interim (see People v. John, 38 A.D.3d 568, 832 N.Y.S.2d 238).   The Supreme Court has now filed its report.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the hearing court correctly denied suppression of a showup identification made by the victim.   The showup was conducted in close temporal and spatial proximity to the time and place of the crime, and police conduct did not render the procedure unduly suggestive (see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Charles, 31 A.D.3d 657, 658, 818 N.Y.S.2d 305;  People v. Simmons, 297 A.D.2d 759, 760, 747 N.Y.S.2d 790).   Furthermore, as a police officer is authorized to search a defendant incident to a lawful arrest (see Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685;  People v. Cooper, 38 A.D.3d 678, 680, 833 N.Y.S.2d 118;  People v. Davis, 32 A.D.3d 445, 821 N.Y.S.2d 217), the court properly denied suppression of the mask and hat found in the defendant's possession.

 The defendant's contention that the evidence was legally insufficient to prove his identity as the perpetrator of the crime is unpreserved for appellate review (see CPL 470.05[2];  People v. Drayton, 24 A.D.3d 686, 808 N.Y.S.2d 383;  People v. Gomez, 308 A.D.2d 460, 764 N.Y.S.2d 109).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we found that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt.   An identification may be based upon height, weight, clothing, walk, or voice, and is not precluded merely because the witness did not see the defendant's face (see People v. Lyons, 197 A.D.2d 708, 602 N.Y.S.2d 924).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant was not deprived of a fair trial when the trial court administered a third Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528).   Contrary to the defendant's contention, the fact that three Allen charges were given was not, in and of itself, coercive (see People v. Manino, 20 A.D.3d 492, 797 N.Y.S.2d 758;  People v. Cortez, 242 A.D.2d 338, 661 N.Y.S.2d 980;  People v. Sims, 226 A.D.2d 564, 565, 641 N.Y.S.2d 336).

 The defendant's contention that the testimony of a police officer constituted improper bolstering in violation of People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 is unpreserved for appellate review because defense counsel made no objection to this testimony at trial (see CPL 470.05 [2];  People v. Norris, 5 A.D.3d 796, 797, 773 N.Y.S.2d 591;  People v. Anderson, 260 A.D.2d 387, 388, 689 N.Y.S.2d 153).   In any event, the officer's testimony did not, either directly or inferentially, bolster the identification testimony of the complaining witness (see People v. Smalls, 293 A.D.2d 500, 501, 739 N.Y.S.2d 630;  People v. Higgins, 216 A.D.2d 487, 488, 628 N.Y.S.2d 549;  People v. Gray, 203 A.D.2d 587, 612 N.Y.S.2d 941).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).