PEOPLE v. LLOYD

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

The PEOPLE, etc., Respondent, v. Derrick LLOYD, Appellant.

2016–05854

Decided: July 29, 2020

REINALDO E. RIVERA, J.P., MARK C. DILLON, ROBERT J. MILLER, BETSY BARROS, JJ. Paul Skip Laisure, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Sarah G. Pitts of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered May 4, 2016, as amended July 19, 2016, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

The defendant was charged, inter alia, with murder in the second degree with respect to a shooting that took place on January 1, 1991, in Brooklyn, which resulted in the death of William Smith.  In 2007, the defendant was apprehended in Alabama.  He was initially tried in 2010, and that trial ended in a hung jury.  At a second jury trial conducted in 2011, the defendant was convicted of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.  On appeal, by decision and order dated March 12, 2014, this Court reversed that judgment, and directed a new trial (see People v. Lloyd, 115 A.D.3d 766, 981 N.Y.S.2d 792).  In 2016, the defendant was tried for a third time.  He was convicted, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the third degree.

The defendant's contention that his convictions are not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Pearsall, 171 A.D.3d 1096, 1096, 98 N.Y.S.3d 307).  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 the defendant's guilt beyond a reasonable doubt.  Moreover, 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 verdicts of guilt were 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 defendant contends that he was deprived of a fair trial when the Supreme Court permitted one of the People's witnesses to testify regarding her prior identification of the defendant in a photographic array.  Contrary to the defendant's contention, defense counsel opened the door to this testimony by questioning that witness as to her ability to identify the defendant and creating the impression that she was unable to identify the defendant at his first trial (see People v. Banks, 74 A.D.3d 1214, 1215, 905 N.Y.S.2d 627;  People v. McCrae, 69 A.D.3d 759, 761, 895 N.Y.S.2d 101;  People v. Hamilton, 33 A.D.3d 937, 938, 826 N.Y.S.2d 294).

Additionally, the defendant was not deprived of a fair trial when the Supreme Court permitted the People's three eyewitnesses to testify that each had previously identified the defendant in prior court proceedings.  Prior identification evidence is admissible on the People's case-in-chief, notwithstanding its bolstering effect on the witness's in-court testimony (see former CPL 60.30;  People v. White, 73 N.Y.2d 468, 473, 541 N.Y.S.2d 749, 539 N.E.2d 577;  People v. Owens, 43 A.D.3d 1185, 1187, 842 N.Y.S.2d 94).

We also disagree with the defendant's contention that he was deprived of a fair trial when the Supreme Court permitted the People to offer the testimony of a rebuttal witness.  The introduction of that testimony was properly admitted for the purpose of rebutting the defendant's claim that he was at his girlfriend's apartment at the time of the shooting and was not present at a party held near the location of the incident (see People v. Harris, 98 N.Y.2d 452, 489, 749 N.Y.S.2d 766, 779 N.E.2d 705;  People v. Portis, 141 A.D.2d 773, 774, 529 N.Y.S.2d 598).

The record reveals that the sentence imposed upon the defendant's retrial was not the product of institutional vindictiveness nor violative of his right to due process (see People v. Martinez, 26 N.Y.3d 196, 199, 21 N.Y.S.3d 196, 42 N.E.3d 693;  People v. Ocampo, 52 A.D.3d 741, 742, 860 N.Y.S.2d 596).  Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit or do not warrant reversal.

RIVERA, J.P., DILLON, MILLER and BARROS, JJ., concur.

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