PEOPLE v. MOSS

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

The PEOPLE, etc., respondent, v. Rahsheem MOSS, appellant.

Decided: November 24, 2009

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, and L. PRISCILLA HALL, JJ. Martha R. Hochberger, Hewlett, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Lauren Del Giorno and Joanna Hershey of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered March 14, 2008, convicting him of robbery in the second degree and robbery in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Ayres, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 To the extent the defendant relies on portions of the trial record in support of his contention that a showup identification procedure was unduly suggestive, this Court is precluded from reviewing trial testimony in determining whether the hearing court acted properly (see People v. South, 47 A.D.3d 734, 735, 849 N.Y.S.2d 603;  People v. Kendrick, 256 A.D.2d 420, 682 N.Y.S.2d 234).   The propriety of the hearing court's ruling must be determined only in light of the evidence that was before that court (see People v. Gonzalez, 55 N.Y.2d 720, 721-722, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert. denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306;  People v. South, 47 A.D.3d at 735, 849 N.Y.S.2d 603;  People v. Kendrick, 256 A.D.2d 420, 682 N.Y.S.2d 234).   Since the defendant did not seek to reopen the hearing based on the trial testimony, or move for a mistrial, the question of whether the trial testimony undermined the hearing court's determination with respect to the showup identification procedure is not properly before this Court (see People v. Feinsod, 278 A.D.2d 335, 717 N.Y.S.2d 330;  People v. Kendrick, 256 A.D.2d 420, 682 N.Y.S.2d 234).   In any event, the defendant's contention in this regard is without merit (see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611;  People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302;  People v. Berry, 50 A.D.3d 1047, 1048, 856 N.Y.S.2d 228).

 In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

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