People v. Choi
| Decision Date | 02 March 2016 |
| Citation | 26 N.Y.S.3d 333,137 A.D.3d 808 |
| Parties | The PEOPLE, etc., respondent, v. Aram CHOI, appellant. |
| Court | New York Supreme Court — Appellate Division |
137 A.D.3d 808
26 N.Y.S.3d 333
The PEOPLE, etc., respondent,
v.
Aram CHOI, appellant.
Supreme Court, Appellate Division, Second Department, New York.
March 2, 2016.
Seymour W. James, Jr., New York, N.Y. (David Crow and Friedman Kaplan Seiler & Adelman LLP [Eric Corngold and Elizabeth L. Macchiaverna ], of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Ushir Pandit of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered May 23, 2012, convicting him of gang assault in the first degree and gang assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the evidence of his pretrial lineup identification on the ground it was tainted by the witnesses' prior viewings of surveillance videos and still photographs made from those videos. The evidence at the suppression hearing did not establish that, at the lineup procedure, the witnesses were merely identifying the individual they had seen in the videos and photographs rather than the man who had participated in the subject altercation (see People v. Young, 167 A.D.2d 366, 562 N.Y.S.2d 446 ). Moreover, the passage of at least six weeks between the display of the videos and photographs to the witnesses and their identifications of the defendant at the lineup attenuated any possible taint of suggestiveness (see People v. Butts, 279 A.D.2d 587, 719 N.Y.S.2d 680 ; People v. Young, 167 A.D.2d 366, 562 N.Y.S.2d 446 ; People v. Allah, 158 A.D.2d 605, 606, 551 N.Y.S.2d 577 ). The defendant's reliance on the trial testimony to challenge the hearing court's determination is improper, since he failed to move to reopen the suppression hearing (see People v. Lightfoot, 124 A.D.3d 802, 803, 1 N.Y.S.3d 358 ).
The defendant contends that the verdict convicting him of gang assault in the first degree is against the weight of the evidence because, under the facts of this case, that verdict is irrational and inconsistent with the verdict acquitting him of manslaughter in the first degree with respect to the same victim. However, the fact that the defendant was acquitted of manslaughter in the first degree does not undermine...
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