PEOPLE v. OWENS

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Virgil OWENS, a/k/a “O.V.”, a/k/a “V.O.”, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HURLBUTT, KEHOE and LAWTON, JJ. Vincent F. Gugino, Buffalo, for Defendant-Appellant. Donna A. Milling, Buffalo, for Plaintiff-Respondent.

On appeal from a judgment convicting him of robbery in the first degree (Penal Law § 160.15[3] ) and third degree (Penal Law § 160.05), defendant contends that he was improperly excluded from the Wade and Sandoval proceedings as well as from sidebars conducted during jury selection;  that Supreme Court erred in failing to suppress the in-court identification by one of the victims;  that the verdict finding defendant guilty of robbery in the first degree is against the weight of the evidence on the issue of identification;  and that the sentence, an aggregate term of incarceration of 50 years to life, is unduly harsh or severe.

 The transcript indicates that defendant was present throughout the Wade hearing and Sandoval conference.   Similarly, the transcript of jury selection establishes that defendant's right to be present during sidebars was acknowledged by Supreme Court, which repeatedly asked defendant whether he wished to join counsel at the bench for the sidebars (see, People v. Inskeep, 272 A.D.2d 966, 708 N.Y.S.2d 784;  People v. Kanner, 272 A.D.2d 866, 708 N.Y.S.2d 659;  see also, People v. Yeldon, 251 A.D.2d 1047, 1048, 675 N.Y.S.2d 262, lv. denied 92 N.Y.2d 908, 680 N.Y.S.2d 72, 702 N.E.2d 857;  cf., People v. Keen, 94 N.Y.2d 533, 538-539, 707 N.Y.S.2d 380, 728 N.E.2d 979).   There is thus no basis on this record for concluding that defendant was deprived of his right to be present at any material stage of the trial (see generally, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393;  People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836).

 Defendant's motion to suppress the identification testimony was properly denied.   The photo array was a fair one, requiring the victim to view the photographs of six subjects of the same race and approximate age and with similar features (see, People v. Rogers, 245 A.D.2d 1041, 666 N.Y.S.2d 66;  People v. Wooley, 249 A.D.2d 46, 49, 671 N.Y.S.2d 58, lv. denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454;  People v. Burton, 226 A.D.2d 1073, 642 N.Y.S.2d 123, lv. denied 88 N.Y.2d 934, 647 N.Y.S.2d 167, 670 N.E.2d 451;  People v. Lee, 207 A.D.2d 953, 954, 617 N.Y.S.2d 81, lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803;  see generally, People v. Chipp, 75 N.Y.2d 327, 336, 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).   Contrary to defendant's contention, successive photo arrays “ ‘are not per se impermissibly suggestive’ ” (People v. Brennan, 261 A.D.2d 914, 693 N.Y.S.2d 773, lv. denied 94 N.Y.2d 820, 702 N.Y.S.2d 590, 724 N.E.2d 382, quoting People v. Lee, supra, at 953, 617 N.Y.S.2d 81;  see, People v. Galletti, 239 A.D.2d 598, 599, 658 N.Y.S.2d 80, lv. denied 90 N.Y.2d 1011, 666 N.Y.S.2d 106, 688 N.E.2d 1389).

 The verdict is not against the weight of the evidence on the issue of identification.   The victim testified that he got a “good look” at defendant when he approached and was able to view him continuously throughout the incident, which lasted for several minutes and occurred under good lighting conditions.   The jury did not fail to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We have considered defendant's challenge to the severity of his sentence and conclude that it is without merit (see, People v. Owens, 256 A.D.2d 1220, 1223, 685 N.Y.S.2d 145, lv. denied sub nom. People v. O.V., 93 N.Y.2d 877, 689 N.Y.S.2d 439, 711 N.E.2d 653).

Judgment unanimously affirmed.

MEMORANDUM: