People v. Hernandez

• Citation: 533 N.Y.S.2d 488,143 A.D.2d 842
• Parties: The PEOPLE, etc., Respondent, v. Jose HERNANDEZ, Appellant.
• Decision Date: 17 October 1988
• Court: New York Supreme Court Appellate Division

Page 488

533 N.Y.S.2d 488

143 A.D.2d 842

The PEOPLE, etc., Respondent, v. Jose HERNANDEZ, Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 17, 1988.

Joel A. Brenner, East Northport, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Richard T. Faughnan and Tammy J. Smiley, of counsel), for respondent.

Before MOLLEN, P.J., and LAWRENCE, WEINSTEIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from three judgments of the Supreme Court, Kings County (Pincus, J.), all rendered December 3, 1984, convicting him (1) of murder in the second degree, manslaughter in the first degree, assault in the second degree and criminal possession of a weapon in the second degree under Indictment no. 45/84, upon a jury verdict, and imposing sentence, (2) of attempted murder in the second degree, under Indictment no. 57/84, upon a plea of guilty and imposing sentence, and (3) of attempted escape in the first degree, under Indictment no. 2621/84, upon a plea of guilty, and imposing sentence. The appeal from the judgment under Indictment no. 45/84 brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress certain identification evidence.

ORDERED that the judgment under Indictment number 45/84 is modified, as a matter of discretion in the interest of justice, by reducing the minimum term of the sentence imposed on the conviction of murder in the second degree from 25 to 20 years; as so modified, the judgment is affirmed; and it is further,

ORDERED that the judgments under Indictment nos. 57/84 and 2621/84 are affirmed.

With regard to Indictment no. 45/84, we find that the People's failure to preserve a record of the photographic arrays which were shown to witnesses Diaz and Serrano, combined with the People's failure to present the testimony of the officer who conducted such arrays gave rise to an inference that the arrays were suggestive. We also find that the People failed to rebut this inference of suggestiveness (see, People v. Johnson, 106 A.D.2d 469, 482 N.Y.S.2d 563). Nevertheless, the evidence of the witnesses' opportunity to view the defendant during the course of the crime was sufficient to establish an independent basis for in-court identification testimony by Serrano and Diaz (see, People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379).

The defendant argues that that lineup identification by Diaz was tainted by the suggestive photo array. We disagree. The hearing court found that the photographic array was not again shown to Diaz immediately prior to the lineup. "Much weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses" (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Accordingly, we find that the lineup identification by Diaz, which was made months after the photographic procedure, was sufficiently attenuated and was not in itself suggestive (see, People v. Johnson, supra; People v. Floyd, 122 A.D.2d 71, 504 N.Y.S.2d 223).

Viewing the evidence in the light most favorable to the People (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. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5] ).

The trial court did not abuse its discretion in denying the defendant's request to admit certain police reports into evidence since the defendant failed to lay a proper foundation for the admission of such reports (see, People v. May, 122 A.D.2d 168, 504 N.Y.S.2d 546, lv. denied, 68 N.Y.2d 1002, 510 N.Y.S.2d 1035, 503 N.E.2d 132). Nor did the trial court abuse its discretion in denying the defendant's application for an adjournment (see, People v. Daniels, 128 A.D.2d 632, 512 N.Y.S.2d 881, lv. denied 70 N.Y.2d 645, 518 N.Y.S.2d 1037, 512 N.E.2d 563).

The defendant has failed to preserve for appellate review his claim that the court denied him his right to a public trial by closing the courtroom during its charge to the jury (see, People v. Gilchrist, 139 A.D.2d 663, 526 N.Y.S.2d 1019 [2d Dept., 1988] ). In any event, this contention is without merit (see, People v. Colon, 71 N.Y.2d 410, 526 N.Y.S.2d 932, 521 N.E.2d 1075).

The court did not err in charging that the defendant was an interested witness or in refusing to charge that the People's witnesses were interested as a matter of law (see, People v. Hamma, 130 A.D.2d 763, 516 N.Y.S.2d 57, lv. denied, 70 N.Y.2d 647, 518 N.Y.S.2d 1039, 512 N.E.2d 565). Nor did the court err in refusing to charge second degree manslaughter (Penal Law § 125.15[1] ) as a lesser included offense to murder in the second degree since there is no...