PEOPLE v. BALL

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

The PEOPLE of the State of New York, Respondent, v. Clifford BALL, Jr., Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, FAHEY, AND PINE, JJ. Carl M. Darnall, Fairport, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Loretta S. Courtney of Counsel), for Respondent.

 On appeal from a judgment convicting him following a jury trial of, inter alia, robbery in the first degree (Penal Law § 160.15[4] ) and criminal possession of a weapon in the second degree (§ 265.03 [former (2) ] ), defendant contends that County Court erred in refusing to suppress identification testimony.   We reject that contention.   As we concluded in our decision on the prior appeal of a codefendant, “ ‘the showup was reasonable under the circumstances-that is, ․ conducted in close geographic and temporal proximity to the crime-and the procedure used was not unduly suggestive’ ” (People v. Newton, 24 A.D.3d 1287, 1288, 806 N.Y.S.2d 826, lv. denied 6 N.Y.3d 836, 814 N.Y.S.2d 84, 847 N.E.2d 381, quoting People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611).   Contrary to defendant's contention, the sequence in which the suspects were shown separately to the victim did not render the showup identification procedure unduly suggestive (see People v. Evans, 291 A.D.2d 868, 869, 737 N.Y.S.2d 322).   We also reject defendant's further contention that the People were required to establish the existence of exigent circumstances in order to justify their use of the showup identification procedure.  “Exigent circumstances for a civilian showup are required only when it is conducted at a police station or when it is not held in geographic and temporal proximity to the crime” (People v. Ponder, 42 A.D.3d 880, 881, 838 N.Y.S.2d 767, lv. denied 9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899;  see People v. Eaves, 15 A.D.3d 891, 892, 788 N.Y.S.2d 749, lv. denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326) and, as we previously held, the showup identification procedure was conducted in geographic and temporal proximity to the crime (see Newton, 24 A.D.3d at 1288, 806 N.Y.S.2d 826).

 Contrary to the further contention of defendant, the court's interested witness instruction was fair and balanced.  “It has been repeatedly held that the standard interested witness instruction that was given here, which instructs that the defendant is an interested witness as a matter of law and that the jury is free to find, as a matter of fact, that any of the prosecution's witnesses are also interested witnesses, is properly balanced” (People v. Bowden, 198 A.D.2d 39, 40, 603 N.Y.S.2d 448;  see People v. Agosto, 73 N.Y.2d 963, 967, 540 N.Y.S.2d 988, 538 N.E.2d 340).

As the People correctly concede, pursuant to our decision in the appeal of a second codefendant, who was tried jointly with defendant (People v. Clark, 6 A.D.3d 1066, 1068, 776 N.Y.S.2d 656, lv. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199), that part of the judgment convicting defendant of criminal possession of a weapon in the second degree must be reversed and that count of the indictment dismissed.   We therefore modify the judgment accordingly.   As we wrote in that decision, “[t]he People presented proof that defendant, as either a principal or an accomplice, possessed two different firearms, but defendant was indicted for possession of only one.   Nothing in the bill of particulars or instructions given by County Court specified which firearm defendant was alleged to have possessed and thus it is possible that defendant was convicted of an unindicted crime” (id.).   The same reasoning applies equally here.   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of criminal possession of a weapon in the second degree and dismissing count three of the indictment and as modified the judgment is affirmed.

MEMORANDUM: