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

The PEOPLE of the State of New York, Respondent, v. Paul COBB, Defendant-Appellant.

Decided: May 16, 2002

WILLIAMS, P.J., TOM, MAZZARELLI, ELLERIN, and MARLOW, JJ. Donna Krone, for Respondent. Marianne Karas, for Defendant-Appellant.

Judgment, Supreme Court, New York County (David Saxe, J. at hearing;  Renee White, J. at nonjury trial and sentence), rendered October 6, 1998, convicting defendant of burglary in the first degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.

 Defendant's motion to suppress identification testimony was properly denied.   The fact that the witness selected defendant's picture from a photo array shortly before the lineup did not render the otherwise fair lineup unduly suggestive (see, People v. Brown, 161 A.D.2d 721, 558 N.Y.S.2d 841, lv. denied 76 N.Y.2d 853, 560 N.Y.S.2d 993, 561 N.E.2d 893).   Any negative inference which might have arisen from the failure of the police to preserve 20 of the 28 photographs, after converting to computerized photographs, was dispelled by testimony that the eight remaining photographs were representative of the 28 photographs viewed by the witness.   Since the court found that the eight photographs were not unduly suggestive, the additional photographs could only have made the array even fairer (see, People v. Campos, 197 A.D.2d 366, 602 N.Y.S.2d 134, lv. denied 82 N.Y.2d 892, 610 N.Y.S.2d 159, 632 N.E.2d 469).

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the trial judge's determinations concerning identification and credibility.   The victim's identification of defendant was reliable and was corroborated by circumstantial evidence.

 Upon review of the existing record, we find that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).   The evidence that defendant faults his trial counsel for failing to introduce was not exculpatory, and was in fact introduced by the People on rebuttal.

 The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472).   In any event, in this nonjury trial, the trial court was made aware of defendant's record through the Sandoval application itself, and a Judge is presumed capable of disregarding prejudicial matter (see, People v. Moreno, 70 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200).

The court properly exercised its discretion in sentencing defendant as a persistent felony offender.