PEOPLE v. GREGORY (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered November 5, 2014, convicting him of murder in the second degree, attempted murder in the second degree, and 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's contention that the Supreme Court abdicated its judicial function by allowing prospective jurors who concluded that they could not be fair and impartial to opt out of serving on the jury without further inquiry is unpreserved for appellate review (see CPL 470.05[2];  People v. King, 27 N.Y.3d 147, 157, 31 N.Y.S.3d 402, 50 N.E.3d 869;  People v. Santos, 150 A.D.3d 1270, 1271, 52 N.Y.S.3d 885;  People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696;  People v. McGhee, 4 A.D.3d 485, 485, 772 N.Y.S.2d 344) and, in any event, without merit.

The defendant's contention, raised in his pro se supplemental brief, that the photo array and lineup identification procedures were unduly suggestive is unpreserved for appellate review, since, at the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), he failed to raise the specific grounds upon which he now challenges the procedures (see CPL 470.05[2];  People v. Martin, 116 A.D.3d 981, 982, 983 N.Y.S.2d 813;  People v. Fields, 66 A.D.3d 799, 799, 887 N.Y.S.2d 182).  In any event, the People established in the first instance that the pretrial identification procedures were not improper, and the defendant failed to establish that they were unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608;  People v. Martin, 116 A.D.3d at 982, 983 N.Y.S.2d 813).

Additionally, contrary to the defendant's contention, raised in his pro se supplemental brief, the jury's verdict was not against the weight of the evidence.  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, 348–349, 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  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 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).

Further, the defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is without merit (see People v. Porter, 119 A.D.3d 438, 439, 989 N.Y.S.2d 480).  The defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Leach, 137 A.D.3d 1300, 1302, 30 N.Y.S.3d 117;  see also Strickland v. Washington, 466 U.S. 668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674).  He failed to demonstrate that his attorney's decision not to present certain evidence or elicit testimony about the alleged shooter in an unrelated incident had any reasonable possibility of affecting the outcome or depriving him of a fair trial (see Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. 2052).

BALKIN, J.P., LEVENTHAL, HINDS–RADIX and MALTESE, JJ., concur.