People v. Goins

• Decision Date: 05 February 2021
• Docket Number: KA 18-02395,1243
• Citation: 191 A.D.3d 1399,138 N.Y.S.3d 399 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Lawren GOINS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1399
138 N.Y.S.3d 399 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Lawren GOINS, Defendant-Appellant.

1243
KA 18-02395

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

Entered: February 5, 2021

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ) and attempted

138 N.Y.S.3d 400

murder in the second degree (§§ 110.00, 125.25 [1]), arising from a shooting in which one victim was killed and another was wounded. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his challenges to Supreme Court's refusal to suppress identification testimony and the severity of his sentence ( see People v. Herman , 151 A.D.3d 1866, 1867, 54 N.Y.S.3d 352 [4th Dept. 2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ; People v. Hankerson , 61 A.D.3d 1424, 1425, 877 N.Y.S.2d 769 [4th Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ), we nevertheless conclude that those challenges lack merit.

We reject defendant's contention that the court erred in refusing to suppress identification testimony based on allegedly suggestive photo array identification procedures conducted by the police. Initially, defendant "failed to preserve for our review his contention that the photo array was unduly suggestive because he was the only subject therein [whose] eyes" were looking slightly to the right ( People v. Bell , 19 A.D.3d 1074, 1075, 796 N.Y.S.2d 464 [4th Dept. 2005], lv denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155 [2005], reconsideration denied 5 N.Y.3d 850, 806 N.Y.S.2d 170, 840 N.E.2d 139 [2005] ). In any event, that contention is without merit. The photos in the array depict six males of similar age, skin tone, hairstyle, and physical features. "Although defendant is the only person in the array looking [slightly] to his [right], the viewer's attention is not drawn to defendant's photo in such a way as to indicate that the police were urging...