PEOPLE v. DAVIS (2007)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 28, 2003, convicting him of manslaughter in the first degree, gang assault in the first degree, assault in the first degree, and assault in the third degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Corso, J.), of those branches of the defendant's omnibus motion which were to suppress identification testimony and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 The County Court properly denied suppression of testimony regarding showup identifications that occurred shortly after the defendant's apprehension.   The showups took place in close geographical and temporal proximity to the commission of the crime (see People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654), and were not unduly suggestive (see People v. Gilyard, 32 A.D.3d 1046, 821 N.Y.S.2d 461;  People v. Loo, 14 A.D.3d 716, 789 N.Y.S.2d 247).   Further, the facts adduced at the suppression hearing indicate that “exigent circumstances” existed to justify the second showup identification (People v. Slade, 174 A.D.2d 639, 639, 571 N.Y.S.2d 503;  cf. People v. Johnson, 169 A.D.2d 779, 565 N.Y.S.2d 145).

 Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress his statements to law enforcement officials as the statements were made after the intelligent, knowing, and voluntary waiver of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and were not the product of police coercion (see People v. Bebeck, 258 A.D.2d 660, 685 N.Y.S.2d 785).

The defendant's contentions regarding the legal sufficiency of the evidence are unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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 find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power (see CPL 470.15 [5] ), we are satisfied that the verdict of guilt 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 denied his right to a fair trial by a plea agreement between the prosecution and a codefendant in which the codefendant agreed not to testify on behalf of the defendant.   The codefendant's allocution demonstrated that his testimony would not have exculpated the defendant (see People v. Scanlon, 231 A.D.2d 852, 853, 648 N.Y.S.2d 416;  cf. People v. Turner, 45 A.D.2d 749, 750, 356 N.Y.S.2d 654).

 The defendant failed to preserve for appellate review his claims regarding the prosecutor's summation remarks (see CPL 470.05[2];  People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588).   In any event, while portions of the prosecutor's summation improperly denigrated defense counsel, in light of the nature and quality of the evidence, coupled with the court's instructions to the jury, reversal is not warranted (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Lee, 34 A.D.3d 696, 824 N.Y.S.2d 418, lv. denied 8 N.Y.3d 882, 832 N.Y.S.2d 494, 864 N.E.2d 624;  People v. Turner, 34 A.D.3d 705, 824 N.Y.S.2d 415;  People v. Dardain, 226 A.D.2d 551, 640 N.Y.S.2d 817;  People v. Roccaforte, 141 A.D.2d 775, 776, 529 N.Y.S.2d 865).

The defendant's claim that the jury verdict was inconsistent is unpreserved for appellate review (see CPL 470.05[2];  People v. Graham, 307 A.D.2d 935, 762 N.Y.S.2d 889).   In any event, the verdict was not repugnant or inconsistent (see People v. Trappier, 87 N.Y.2d 55, 637 N.Y.S.2d 352, 660 N.E.2d 1131;  People v. Baliukonis, 35 A.D.3d 626, 829 N.Y.S.2d 112;  cf. People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85, 455 N.Y.S.2d 675).