People v. Dingle

• Citation: 147 A.D.3d 1080,47 N.Y.S.3d 457
• Parties: The PEOPLE, etc., respondent, v. Michael DINGLE, appellant.
• Decision Date: 22 February 2017
• Court: New York Supreme Court Appellate Division

147 A.D.3d 1080
47 N.Y.S.3d 457

The PEOPLE, etc., respondent,
v.
Michael DINGLE, appellant.

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

Feb. 22, 2017.

47 N.Y.S.3d 458

Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Diane R. Eisner of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

147 A.D.3d 1080

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 5, 2014, convicting him of robbery in the first degree (two counts) and robbery in the third degree, upon a jury verdict, and sentencing him, as a persistent violent felony offender, to indeterminate terms of imprisonment of 20 years to life upon each of his convictions of robbery in the first degree, and, as a persistent felony offender, to an indeterminate term of imprisonment of 20 years to life upon his conviction of robbery in the third degree, to run consecutively to each other.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that all of the sentences imposed shall run concurrently with each other; as so modified, the judgment is affirmed.

Contrary to the defendant's contention, defense counsel's failure to call the complainants as witnesses at the suppression hearing or move to reopen the hearing based upon their trial testimony did not deprive him of the effective assistance of counsel (see People v. Schultz, 128 A.D.3d 989, 989, 9 N.Y.S.3d 402 ; People v. Crespo, 117 A.D.3d 1538, 1539, 985 N.Y.S.2d 378 ; People v. Robles, 116 A.D.3d 1071, 983 N.Y.S.2d 885 ; People v. Jamison, 96 A.D.3d 571, 572, 946 N.Y.S.2d 569 ; People v. Gant, 26 A.D.3d 516, 517–518, 809 N.Y.S.2d 584 ). In addition, since the three subject robberies shared sufficiently distinctive circumstances to establish a modus operandi and, therefore, the evidence of the defendant's commission of each crime could be considered as evidence of his identity as the perpetrator of the other crime (see People v. Huggins, 134 A.D.3d 854, 855–856, 22 N.Y.S.3d 104 ; People v. Boone, 129 A.D.3d 1099, 1100, 11 N.Y.S.3d 687 ; People v. McRae, 276 A.D.2d 332, 332–333, 714 N.Y.S.2d 56 ), defense counsel was not ineffective for failing to object to comments made by the prosecutor which purportedly commingled the evidence (see People v. Boone, 129 A.D.3d at 1100, 11 N.Y.S.3d 687 ; People v. Currie, 117 A.D.3d 1074, 1075, 986 N.Y.S.2d 609 ; People v. Lewis, 101 A.D.3d 1154, 1154, 956 N.Y.S.2d 526 ).

The defendant's contention that the Supreme Court erred in

147 A.D.3d 1081

failing to, sua sponte, charge the jury on the unreliability of cross-racial identification is unpreserved for appellate review since the defendant did not request such a charge or object to the charge as given (see CPL 470. 05[2]; People v. Rivera, 138 A.D.3d 1037, 1037, 30 N.Y.S.3d 226 ; People v. Cruz–Checo, 136 A.D.3d 840, 841, 24 N.Y.S.3d 526 ). In any event, under the circumstances of this case, a cross-racial identification charge would have been improper since the defendant never placed the issue in evidence during the trial (see People v. Alexander, 94 N.Y.2d 382, 385, 705 N.Y.S.2d 551, 727 N.E.2d 109 ; People v. Boone, 129 A.D.3d at 1099, 11 N.Y.S.3d 687 ; People v. Best, 120 A.D.3d 707, 708, 991 N.Y.S.2d 441 ;

47 N.Y.S.3d 459

People v....