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

The PEOPLE, etc., Respondent, v. Nathan IRIZARRY , Appellant.


Decided: June 10, 2020

LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ. Samuel S. Coe, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio, Raffaelina Gianfrancesco, and Brian Witthuhn of counsel), for respondent.


Appeal by the defendant from a judgment of the County Court, Westchester County (Barbara Gunther Zambelli, J.), rendered September 5, 2017, convicting him of assault on a police officer (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

In the early morning hours of November 14, 2015, the Mount Pleasant Police Department received a report of automobiles drag racing on a public roadway in Mount Pleasant. An individual identified as the defendant was observed by Sergeant Michael McGuinn and Police Officer Luke Oliveri operating a distinctive racing-type car with only one functioning headlight. The defendant was directed to pull over to the side of the road. Rather than complying, the defendant fled the scene at a high rate of speed. One of the officers engaged in pursuit, but was unsuccessful in catching the defendant's car.

Shortly thereafter, the same two officers observed the defendant's car with the defendant behind the wheel. The officers were able to effect a traffic stop, and Sergeant McGuinn directed the defendant to step out of the car. The defendant refused to exit the car, and then he suddenly reversed the car at a high rate of speed, dragging Sergeant McGuinn several feet and striking Officer Oliveri. The defendant then drove away. Sergeant McGuinn and Officer Oliveri both suffered serious physical injuries.

The defendant eventually was arrested on an unrelated case and placed in a lineup. Both Sergeant McGuinn and Officer Oliveri identified the defendant as the perpetrator in the instant matter. After a jury trial, the defendant was convicted of two counts of assault on a police officer.

We agree with the County Court's determination to deny that branch of the defendant's omnibus motion which was to suppress lineup identification evidence. The defendant's contention that the lineup was unduly suggestive because he was the shortest person in the lineup and the only person with a “chin-strap” beard is without merit. Our review of the photographs of the lineup establishes that the fillers sufficiently resembled the defendant so as not to render the lineup unduly suggestive (see People v. Smart, 142 A.D.3d 513, 36 N.Y.S.3d 197 , affd 29 N.Y.3d 1098, 58 N.Y.S.3d 896, 81 N.E.3d 379 ; People v. Corea, 25 A.D.3d 563, 808 N.Y.S.2d 719 ).

The defendant's further contentions regarding suppression of the lineup identification evidence are unpreserved for appellate review (see CPL 470.05[2]; People v. Gregory, 160 A.D.3d 894, 75 N.Y.S.3d 225 ), and, in any event, without merit. The defendant's contention that the police lacked probable cause to place him in the lineup in connection with this case lacks merit, since the lineup was conducted while the defendant was lawfully in custody on an unrelated case (see People v. McDonald, 82 A.D.3d 1125, 918 N.Y.S.2d 784 ; People v. Smith, 21 A.D.3d 386, 799 N.Y.S.2d 569 ). Moreover, a certain comment made to one of the witnesses regarding the defendant's arrest did not render the lineup unduly suggestive (see People v. McDonald, 82 A.D.3d 1125, 918 N.Y.S.2d 784 ; People v. Green, 14 A.D.3d 578, 789 N.Y.S.2d 184 ). Further, contrary to the defendant's contention, the lineup was not rendered unduly suggestive because the witnesses viewed his photograph in a photo array prior to the lineup. The present case does not involve a situation “where the witness tentatively selects more than one photograph of men resembling the perpetrator and, of the chosen photographs, only the defendant's picture is repeated in a second photographic array containing a small number of photographs not previously shown” ( People v. Malphurs, 111 A.D.2d 266, 268, 489 N.Y.S.2d 102 ). Inasmuch as the lineup was not unduly suggestive, an independent source hearing was not required (see People v. Marshall, 26 N.Y.3d 495, 504, 25 N.Y.S.3d 58, 45 N.E.3d 954 ).

Regarding the defendant's conviction of assault on a police officer with respect to Officer Oliveri, the defendant contends that the evidence was not legally sufficient to establish that he intended to prevent Officer Oliveri from performing a lawful duty or that he was aware that Officer Oliveri was near his vehicle when he suddenly reversed. This contention is unpreserved for appellate review (see CPL 470.05[2]). 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 of assault on a police officer with respect to Officer Oliveri 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the two counts of assault on a police officer was not against the weight of the evidence.

The defendant's challenge to the County Court's instructions to the jury regarding the element of intent is unpreserved for appellate review (see CPL 470.05[2]; People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; People v. Prince, 136 A.D.3d 844, 24 N.Y.S.3d 519 ), and, in any event, without merit. The court provided a meaningful response to the jury's inquiry and the charge, as a whole, conveyed the correct principles of law (see People v. Drake, 7 N.Y.3d 28, 817 N.Y.S.2d 583, 850 N.E.2d 630 ; People v. Fields, 87 N.Y.2d 821, 637 N.Y.S.2d 355, 660 N.E.2d 1134 ; People v. Weinberg, 83 N.Y.2d 262, 609 N.Y.S.2d 155, 631 N.E.2d 97 ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).


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