PEOPLE v. BAEZ (2019)

DECISION & ORDER

ORDERED that the judgment and the order are affirmed.

The lineup from which the defendant was identified was not suggestive.  “ ‘While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of the crimes charged (see People v. Lundquist, 151 A.D.2d 505, 506, 542 N.Y.S.2d 295), there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance’ ” (People v. Jean–Baptiste, 57 A.D.3d 566, 566–567, 868 N.Y.S.2d 724, quoting People v. Cintron, 226 A.D.2d 390, 390–391, 640 N.Y.S.2d 242;  see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608).  Here, the fillers sufficiently resembled the defendant (see People v. Fingall, 136 A.D.3d 622, 623, 24 N.Y.S.3d 704;  People v. Speaks, 124 A.D.3d 689, 690, 1 N.Y.S.3d 257, affd 28 N.Y.3d 990, 42 N.Y.S.3d 644, 65 N.E.3d 673).  Moreover, the police took reasonable steps to conceal any differences between the appearances of the lineup participants and the defendant (see People v. Bradley, 160 A.D.3d 760, 761, 74 N.Y.S.3d 317) by having the men seated, with a sheet over their lap, and their numbers held in front of them.  In addition, the men all wore baseball caps backwards on their heads to account for any differences in hairstyles (see People v. DeJesus, 140 A.D.3d 788, 789, 30 N.Y.S.3d 879;  People v. Brown, 47 A.D.3d 826, 827, 849 N.Y.S.2d 639;  People v. Johnson, 306 A.D.2d 214, 215, 761 N.Y.S.2d 229).

The defendant's contention that the evidence was legally insufficient to support his conviction because the prosecution failed to establish his identity as the perpetrator of the crimes is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Hankerson, 149 A.D.3d 778, 778, 51 N.Y.S.3d 169).  In any event, viewing the evidence in the light most favorable to the People (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 his identity as the perpetrator.  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, 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).

The defendant failed to preserve for appellate review his contention that the testimony of a police detective, who testified that the defendant was arrested after one of the victims viewed the lineup, and comments made by the prosecutor in her opening statement and summation, implicitly bolstered the complainant's identification of the defendant from the lineup (see People v. Locenitt, 157 A.D.3d 905, 907, 66 N.Y.S.3d 908;  People v. Bonilla, 151 A.D.3d 735, 736, 58 N.Y.S.3d 48).  In any event, although the testimony constituted improper bolstering and the comments were improper (see People v. Holmes, 167 A.D.3d 1039, 89 N.Y.S.3d 674;  People v. Fields, 309 A.D.2d 945, 945, 766 N.Y.S.2d 365), any error in their admission was harmless, as the evidence of the defendant's guilt was overwhelming and there was no significant probability that the error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We agree with the Supreme Court's denial of the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, since there is no merit to the defendant's contention that he was deprived of the effective assistance of counsel.  The defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Graham, 129 A.D.3d 860, 861–862, 11 N.Y.S.3d 242).

The defendant's remaining contentions are without merit.

DILLON, J.P., LEVENTHAL, HINDS–RADIX and DUFFY, JJ., concur.