PEOPLE v. JACKSON (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered July 18, 2006, convicting him of attempted robbery in the first degree, assault in the second degree, menacing in the second degree, and criminal possession of a weapon in the fourth 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 testimony.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony resulting from two showups.   The showups, which were conducted in close geographic and temporal proximity to the crime, were reasonable under the circumstances and were not unduly suggestive (see People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  People v. Cruz, 31 A.D.3d 660, 661, 818 N.Y.S.2d 302;  People v. Pierre, 2 A.D.3d 461, 462, 767 N.Y.S.2d 822;  People v. Tislon, 279 A.D.2d 488, 719 N.Y.S.2d 590;  People v. Cartas, 238 A.D.2d 434, 435, 657 N.Y.S.2d 352;  People v. Rowlett, 193 A.D.2d 768, 597 N.Y.S.2d 718;  People v. Carbonaro, 162 A.D.2d 459, 556 N.Y.S.2d 158).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of attempted robbery in the first degree and assault in the second degree beyond a reasonable doubt (see People v. Felix, 56 A.D.3d 796, 868 N.Y.S.2d 288;   People v. Perez, 51 A.D.3d 1042, 857 N.Y.S.2d 502, lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 619, 896 N.E.2d 105).   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 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;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt of attempted robbery in the first degree and assault in the second degree 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).

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his motion for a mistrial based upon one brief reference in the trial testimony to a crime for which the defendant was charged but not indicted (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794;  People v. Brescia, 41 A.D.3d 613, 614, 836 N.Y.S.2d 432;  People v. Whitely, 41 A.D.3d 622, 623, 837 N.Y.S.2d 345).   The Supreme Court's prompt action in striking the testimony and issuing curative instructions to the jury alleviated any prejudice to the defendant that may have resulted from such testimony (see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668;  People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904;  People v. Brescia, 41 A.D.3d at 613-614, 836 N.Y.S.2d 432).

Also contrary to the defendant's contention, the Supreme Court did not err in admitting a certain 911 recording into evidence (see People v. Buie, 86 N.Y.2d 501, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Marino, 21 A.D.3d 430, 800 N.Y.S.2d 439, cert. denied 548 U.S. 908, 126 S.Ct. 2930, 165 L.Ed.2d 958;  People v. Lewis, 222 A.D.2d 1058, 635 N.Y.S.2d 872).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.