PEOPLE v. DEAN

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Dale W. DEAN, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ. James A. Leone, Auburn, for Defendant-Appellant. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of kidnapping in the second degree (Penal Law § 135.20), sodomy in the first degree (former § 130.50[1] ), sexual abuse in the first degree (§ 130.65[1] ), and robbery in the first degree (§ 160.15[4] ).   Contrary to defendant's contention, the photo array was not unduly suggestive.  “[T]he individuals depicted therein were ‘sufficiently similar in appearance so that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection’ ” (People v. Powell, 26 A.D.3d 795, 795, 810 N.Y.S.2d 266;  see People v. Martinez, 298 A.D.2d 897, 897-898, 749 N.Y.S.2d 118, lv. denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922, cert. denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515, reh. denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126;  see generally People v. Lee, 96 N.Y.2d 157, 163, 726 N.Y.S.2d 361, 750 N.E.2d 63;  People v. Chipp, 75 N.Y.2d 327, 335-336, 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).   In any event, as County Court properly determined, the People established by clear and convincing evidence that the victim had an independent basis for her in-court identification of defendant (see People v. Young, 20 A.D.3d 893, 798 N.Y.S.2d 625;  People v. Brennan, 261 A.D.2d 914, 915, 693 N.Y.S.2d 773, lv. denied 94 N.Y.2d 820, 702 N.Y.S.2d 590, 724 N.E.2d 382;  see generally Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608).

 Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct on summation (see CPL 470.05 [2];  People v. Torturica [Appeal No. 2], 23 A.D.3d 1040, 805 N.Y.S.2d 750), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a] ).   Defendant also failed to preserve for our review his contention that the court erred in admitting the pellet gun in evidence (see People v. Hurd, 160 A.D.2d 199, 553 N.Y.S.2d 669, lv. denied 76 N.Y.2d 789, 559 N.Y.S.2d 994, 559 N.E.2d 688).   In any event, the pellet gun was properly admitted in evidence “because there were sufficient surrounding circumstances to permit the jury to infer that the gun was used by defendant” during the commission of the crimes (People v. Sheriff, 234 A.D.2d 894, 895, 652 N.Y.S.2d 916, lv. denied 90 N.Y.2d 910, 663 N.Y.S.2d 522, 686 N.E.2d 234).   Any discrepancies between the victim's description of the pellet gun and the pellet gun found in defendant's vehicle “went to the weight to be accorded that evidence and not its admissibility” (People v. Sosa, 255 A.D.2d 236, 237, 681 N.Y.S.2d 492, lv. denied 93 N.Y.2d 979, 695 N.Y.S.2d 65, 716 N.E.2d 1110;  see People v. Taylor, 206 A.D.2d 904, 905, 616 N.Y.S.2d 116, lv. denied 84 N.Y.2d 940, 621 N.Y.S.2d 537, 645 N.E.2d 1237;  People v. Sandy, 187 A.D.2d 466, 589 N.Y.S.2d 523).

Contrary to the further contention of defendant, the evidence is legally sufficient to establish that he displayed the pellet gun within the meaning of Penal Law § 160.15(4).   Thus, we conclude that the conviction of robbery is supported by legally sufficient evidence, as is the conviction of the remaining crimes, and the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: