PEOPLE v. CARMONA

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

The PEOPLE of the State of New York, Respondent, v. Diego CARMONA, Defendant–Appellant.

8115

Decided: January 15, 2019

Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ. Christina A. Swarns, Office of the Appellate Defender, New York (Daniel R. Lambright of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J. at suppression hearing;  John W. Carter, J. at jury trial and sentencing), rendered April 3, 2013, convicting defendant of attempted robbery in the second degree, and sentencing him to a term of 21/212 years, unanimously affirmed.

The record supports the suppression court's determination that the lineup procedure was not unduly suggestive (see generally People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).  Our review of photographs of the lineup reveals that the difference in ethnicity between defendant and the fillers was not reflected in their actual appearances, and that there was no significant disparity in appearances that would single defendant out (see People v. Rodriguez, 52 A.D.3d 399, 860 N.Y.S.2d 523 [1st Dept. 2008], lv denied 11 N.Y.3d 834, 868 N.Y.S.2d 609, 897 N.E.2d 1093 [2008];  People v. Ahmed, 173 A.D.2d 546, 547, 570 N.Y.S.2d 146 [2d Dept. 1991], lv denied 78 N.Y.2d 1073, 577 N.Y.S.2d 236, 583 N.E.2d 948 [1991] ).  Defendant's argument that the lineup was nevertheless suggestive from the victim's point of view is unsupported by the hearing record.

Defendant did not preserve his specific present challenges to the admission of the victim's lineup identification at trial under CPL 60.25, and we decline to review them in the interest of justice.  As an alternative holding, we conclude that the People laid a sufficient foundation under that statute (see People v. Bayron, 66 N.Y.2d 77, 81, 495 N.Y.S.2d 24, 485 N.E.2d 231 [1985];  People v. Mendoza, 293 A.D.2d 326, 739 N.Y.S.2d 822 [1st Dept. 2002], lv denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232 [2002] ), and the victim's testimony that he was sure of his identification at the time of the lineup was proper (see People v. Jamerson, 68 N.Y.2d 984, 986, 510 N.Y.S.2d 554, 503 N.E.2d 110 [1986] ).

Although the better practice in this case, where a single eyewitness identification was the only evidence linking defendant to this crime, would have been to grant defendant's request for an identification charge that discussed the weapon focus effect and memory decay as factors affecting the reliability of eyewitness identification, the trial court did not abuse its discretion in failing to do so (People v. Boone, 30 N.Y.3d 521, 537, 69 N.Y.S.3d 215, 91 N.E.3d 1194 [2017] ).  We find that the court sufficiently instructed the jury on the subject of identification (People v. Lopez, 1 A.D.3d 168, 169, 766 N.Y.S.2d 845 [1st Dept. 2003], lv denied 1 N.Y.3d 598, 776 N.Y.S.2d 230, 808 N.E.2d 366 [2004];  see also People v. Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454, 451 N.E.2d 212 [1983] ), particularly since the court generally followed the Criminal Jury Instructions (see People v. Vaughn, 132 A.D.3d 456, 457, 17 N.Y.S.3d 420 [1st Dept. 2015], lv denied 26 N.Y.3d 1151, 32 N.Y.S.3d 65, 51 N.E.3d 576 [2016] ).

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's determinations concerning identification and credibility.  The evidence supports the conclusion that the victim had an adequate opportunity to observe defendant during the crime.