People v. Davidson

• Decision Date: 30 October 2014
• Docket Number: 13351, 150/10.
• Citation: 995 N.Y.S.2d 64,2014 N.Y. Slip Op. 07428,121 A.D.3d 612
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric DAVIDSON, Defendant–Appellant.

121 A.D.3d 612

995 N.Y.S.2d 64

2014 N.Y. Slip Op. 07428

The PEOPLE of the State of New York, Respondent

v.Eric DAVIDSON, Defendant–Appellant.

13351, 150/10.

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

Oct. 30, 2014.

Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Diane N. Princ of counsel), for respondent.

MAZZARELLI, J.P., ACOSTA, SAXE, RICHTER, CLARK, JJ.

Opinion

Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O. and Charles H. Solomon, J. at hearing; Michael J. Obus, J. at jury trial and sentencing), rendered August 1, 2012, convicting defendant of two counts of burglary in the second degree and two counts of criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 16 years to life, unanimously affirmed.

Defendant's motion to suppress identification testimony was properly denied. The record supports the hearing court's finding that the photo array and lineup identification procedures were fair and nonsuggestive. The photographs were sufficiently similar to avoid any substantial likelihood that defendant would be singled out for identification (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).

Defendant's arguments concerning the sufficiency and weight of the evidence supporting one of the burglary convictions are unavailing (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence supporting this conviction included the inference to be drawn from recent, exclusive, unexplained possession of the fruits of a crime (see People v. Galbo, 218 N.Y. 283, 290, 112 N.E. 1041 [1916] ), and damaging admissions contained in recordings of phone calls made by defendant while incarcerated. The evidence did not support any inference that defendant could have obtained the first victim's property other than by burglarizing his apartment.

The trial court, which accorded defendant a full opportunity to present a third-party-culpability defense, properly exercised its discretion in precluding defendant from introducing portions of a videotape that plainly constituted hearsay. Defendant did not make an adequate showing that the hearsay evidence was reliable, or that it was critically exculpatory (see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] ; People v. Robinson, 89 N.Y.2d 648, 654, 657...