PEOPLE v. BENN

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

The PEOPLE, etc., Respondent, v. Sherwin BENN, Appellant.

2015–01698

Decided: November 13, 2019

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ. Paul Skip Laisure, New York, N.Y. (Ava C. Page of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Josette Simmons McGhee of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J.), rendered February 11, 2015, convicting him of burglary in the second degree, possession of burglar's tools, criminal mischief in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing (Deborah Stevens Modica, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

We agree with the Supreme Court's denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.  “Showup procedures, although generally disfavored, are permissible where employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification” (People v. Castro, 149 A.D.3d 862, 863, 52 N.Y.S.3d 385;  see People v. Huerta, 141 A.D.3d 602, 602, 35 N.Y.S.3d 433).  While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, “the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure” (People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608;  see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  People v. Riley, 70 N.Y.2d 523, 531, 522 N.Y.S.2d 842, 517 N.E.2d 520).  “The People's burden consists of two elements” (People v. Ward, 116 A.D.3d 989, 991, 984 N.Y.S.2d 123).  First, “the People must demonstrate that the showup was reasonable under the circumstances” (People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).  “Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People's burden” (id.).  Second, the People must produce “some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” (id.;  see People v. Ward, 116 A.D.3d at 991, 984 N.Y.S.2d 123;  People v. Calero, 105 A.D.3d 864, 864, 962 N.Y.S.2d 665).

Here, the People presented evidence that the complainant identified the defendant while the complainant was riding in a vehicle with police officers who were canvassing the area shortly after the crime occurred.  The People's evidence showed that the identification occurred without prompting by the police officers and within a few blocks of the location of the alleged crime.  The evidence presented by the People satisfied their initial burden of establishing that the showup identification procedure was reasonable under the circumstances and was not unduly suggestive (see People v. Huerta, 141 A.D.3d at 603, 35 N.Y.S.3d 433;  People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317;  People v. Ervin, 118 A.D.3d 910, 911, 987 N.Y.S.2d 454).  The defendant, in turn, failed to satisfy his ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression.  Contrary to the defendant's contention, the evidence at the hearing demonstrated that the complainant's subsequent identification of the defendant, which occurred once the defendant had been apprehended after a brief foot chase, was merely confirmatory of the initial identification that had occurred approximately four minutes earlier (see People v. Belton, 143 A.D.3d 835, 836, 38 N.Y.S.3d 621;  People v. Benjamin, 2 A.D.3d 740, 741, 768 N.Y.S.2d 659;  People v. Torres, 223 A.D.2d 741, 742, 637 N.Y.S.2d 214;  People v. Stewart, 144 A.D.2d 601, 601, 534 N.Y.S.2d 439;  People v. Vasquez, 141 A.D.2d 880, 881, 530 N.Y.S.2d 159).

As the defendant concedes, his contention that the People failed to prove beyond a reasonable doubt that he knowingly entered a dwelling unlawfully is unpreserved for appellate review inasmuch as the defendant failed to move for a trial order of dismissal on the basis of that specific claim (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Williams, 171 A.D.3d 1223, 98 N.Y.S.3d 631).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant knowingly entered or remained unlawfully in a dwelling (see Penal Law 140.25[2] ).  Contrary to the defendant's contention, the testimony at trial was sufficient to establish that access to the common area of the apartment building, which the defendant had entered, was restricted to tenants and not open to the general public (see People v. Barnes, 26 N.Y.3d 986, 989, 19 N.Y.S.3d 471, 41 N.E.3d 336;  People v. McCray, 23 N.Y.3d 621, 630, 992 N.Y.S.2d 475, 16 N.E.3d 533;  People v. Selby, 146 A.D.2d 655, 655, 536 N.Y.S.2d 552;  cf.  People v. Huggins, 134 A.D.3d 854, 855, 22 N.Y.S.3d 104;  People v. Maisonet, 304 A.D.2d 674, 675, 760 N.Y.S.2d 58).  Moreover, the evidence was sufficient to demonstrate that the defendant knowingly entered a locked storage room, which was a separately secured area within the dwelling and therefore constituted a “separate building” for the purposes of the statute (Penal Law § 140.00[2];  see People v. Felder, 2 A.D.3d 365, 365, 769 N.Y.S.2d 539;  People v. Pena, 176 A.D.2d 971, 972, 575 N.Y.S.2d 575;  see also People v. McCray, 23 N.Y.3d at 624, 992 N.Y.S.2d 475, 16 N.E.3d 533).

The defendant also contends that the People did not present legally sufficient evidence with respect to his identity as the perpetrator of the crimes of which he was convicted.  This contention is unpreserved for appellate review, as the defendant failed to move for a trial order of dismissal on the basis of that specific claim (see People v. Hawkins, 11 N.Y.3d at 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Williams, 171 A.D.3d 1223, 98 N.Y.S.3d 631).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity as the perpetrator of these crimes beyond a reasonable doubt (see People v. Williams, 171 A.D.3d 1223, 98 N.Y.S.3d 631;  People v. Lancaster, 166 A.D.3d 807, 808–809, 87 N.Y.S.3d 232).

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 jury'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;  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).  The complainant testified that he looked at the defendant for 30 to 40 seconds from a close distance in well-lit conditions when he first encountered the defendant in the apartment building, and the complainant's in-court identification of the defendant as the burglar was unequivocal (see People v. Antonelli, 6 A.D.3d 543, 543, 774 N.Y.S.2d 396;  People v. Toro, 192 A.D.2d 685, 685, 597 N.Y.S.2d 100).  We see no reason to disturb the jury's resolution of the discrepancies and inconsistencies between the identification testimony of the complainant and his statements to the police (see People v. Reid, 82 A.D.3d 1268, 1269, 919 N.Y.S.2d 862;  People v. Jean–Marie, 67 A.D.3d 704, 704, 888 N.Y.S.2d 154;  People v. Monroe, 30 A.D.3d 616, 618, 817 N.Y.S.2d 150).

The defendant's contention that certain comments made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review, as the defendant failed to raise any objections during the prosecutor's summation (see CPL 470.05[2];  People v. Katehis, 117 A.D.3d 1080, 1081, 986 N.Y.S.2d 570).  In any event, although some of the prosecutor's remarks were improper (see e.g. People v. Ross, 112 A.D.3d 972, 973, 977 N.Y.S.2d 93), those remarks did not deprive the defendant of a fair trial, and any other error in this regard does not require reversal under the circumstances (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Affser, 309 A.D.2d 812, 813, 765 N.Y.S.2d 530).

SCHEINKMAN, P.J., DILLON, LEVENTHAL and MILLER, JJ., concur.

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