People v. Faraone

• Decision Date: 16 September 2020
• Docket Number: 2017–12505,Ind. No. 93/17
• Citation: 186 A.D.3d 1394,128 N.Y.S.3d 867 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Jason A. FARAONE, appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1394

128 N.Y.S.3d 867 (Mem)

The PEOPLE, etc., respondent,

v.Jason A. FARAONE, appellant.

2017–12505

Ind. No. 93/17

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

Submitted—June 30, 2020

September 16, 2020

Scott Lockwood, Deer Park, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Rosalind C. Gray and Marion Tang of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (John B. Collins, J.), rendered October 4, 2017, convicting him of burglary in the second degree, 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 testimony.

ORDERED that the judgment is affirmed.

We agree with the County Court's denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony. "Showup procedures, although generally disfavored, are permissible where employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification" ( People v. Castro, 149 A.D.3d 862, 863, 52 N.Y.S.3d 385 ; see People v. Baez, 175 A.D.3d 553, 554, 107 N.Y.S.3d 385 ). Here, the evidence adduced at the suppression hearing established that the showup took place approximately 30 minutes after the crime and between two-tenths and half a mile away from the crime scene (see People v. Baez, 175 A.D.3d 553, 107 N.Y.S.3d 385 ; People v. Lancaster, 166 A.D.3d 807, 87 N.Y.S.3d 232 ; People v. Flores, 153 A.D.3d 182, 62 N.Y.S.3d 68 ). Contrary to the defendant's contention, the showup procedure was not unduly suggestive (see People v. Baez, 175 A.D.3d 553, 107 N.Y.S.3d 385 ; People v. Lancaster, 166 A.D.3d 807, 87 N.Y.S.3d 232 ; People v. Flores, 153 A.D.3d 182, 62 N.Y.S.3d 68, affd 32 N.Y.3d 1087, 89 N.Y.S.3d 673, 114 N.E.3d 141 ; People v. Gil, 21 A.D.3d 1120, 803 N.Y.S.2d 634.

The defendant's contention that the evidence was legally insufficient to establish his intent to commit a crime is unpreserved for appellate review, as he did not renew his motion to dismiss after he testified on his own behalf (see People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 ; People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 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 burglary in the second degree 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, 348, 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). The defendant's intent to commit a crime may be inferred from his unlawful entry into another's residence by removing a windowpane (see People v. Borges, 90 A.D.3d 1067, 935 N.Y.S.2d 621 ), as well as his false explanation of his presence (see People v. Diaz, 53 A.D.3d 504, 862 N.Y.S.2d 73 )...