BASSETT, BRYAN, PEOPLE v ( 2013 )


Menu:
  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1224
    KA 10-02344
    PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    BRYAN BASSETT, DEFENDANT-APPELLANT.
    FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Onondaga County Court (Anthony F.
    Aloi, J.), rendered September 9, 2010. The judgment convicted
    defendant, upon a jury verdict, of robbery in the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of robbery in the second degree (Penal Law §
    160.10 [2] [b]). Viewing the evidence in light of the elements of the
    crime as charged to the jury (see People v Danielson, 9 NY3d 342,
    349), we reject defendant’s contention that the verdict is against the
    weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
    495). “Although a different result would not have been unreasonable,
    the jury was in the best position to assess the credibility of the
    witnesses and, on this record, it cannot be said that the jury failed
    to give the evidence the weight it should be accorded” (People v Orta,
    12 AD3d 1147, 1147, lv denied 4 NY3d 801).
    We reject defendant’s further contention that the showup
    identification procedure resulting in identifications made by two
    witnesses was unduly suggestive and that County Court erred in
    refusing to suppress the identifications. Prompt showup
    identification procedures that are conducted in geographic and
    temporal proximity to the crime “are not ‘presumptively infirm,’ and
    in fact have generally been allowed” (People v Ortiz, 90 NY2d 533,
    537, quoting People v Duuvon, 77 NY2d 541, 543). Here, the showup
    identification procedure was reasonable because it was conducted
    within 200 yards of the scene of the crime, within 20 minutes of the
    commission of the crime, and in the course of a continuous, ongoing
    investigation (see People v Brisco, 99 NY2d 596, 597; People v Lewis,
    97 AD3d 1097, 1098, lv denied 19 NY3d 1103). Moreover, the two
    -2-                          1224
    KA 10-02344
    witnesses were placed in different police vehicles and remained apart
    throughout the showup identification procedure. Thus, “ ‘it cannot be
    said that the [witnesses] were in such proximity while viewing
    [defendant] that there was an increased likelihood that if one of them
    made an identification the other[] would concur’ ” (People v Woodard,
    83 AD3d 1440, 1441, lv denied 17 NY3d 803).
    Defendant’s contention that he was denied a fair trial based on
    the prosecutor’s improper questions on cross-examination of defendant
    and improper comments during summation is not preserved for our review
    inasmuch as defendant failed to object to those instances of alleged
    misconduct (see CPL 470.05 [2]). We decline to exercise our power to
    review defendant’s contention as a matter of discretion in the
    interest of justice (see CPL 470.15 [6] [a]; see also People v
    Washington, 89 AD3d 1516, 1516-1517, lv denied 18 NY3d 963). Finally,
    the sentence is not unduly harsh or severe.
    Entered:   December 27, 2013                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-02344

Filed Date: 12/27/2013

Precedential Status: Precedential

Modified Date: 10/8/2016