People v. Johnson, 2015–03207

• Decision Date: 24 October 2018
• Docket Number: 2015–03207,Ind.No. 788/12
• Citation: 165 A.D.3d 1168,85 N.Y.S.3d 585
• Parties: The PEOPLE, etc., respondent, v. Craig JOHNSON, appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1168

85 N.Y.S.3d 585

The PEOPLE, etc., respondent,

v.Craig JOHNSON, appellant.

2015–03207

Ind.No. 788/12

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

Argued - September 7, 2018

October 24, 2018

Paul Skip Laisure, New York, N.Y. (Ronald Zapata of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

RUTH C. BALKIN, J.P., SANDRA L. SGROI, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Ann Riviezzo, J.), rendered March 13, 2015, convicting him of robbery in the first degree (four counts) and robbery in the second degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Albert Tomei, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress identification testimony regarding lineup identifications is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The defendant was convicted of charges related to two robberies in Brooklyn, one committed on January 13, 2012, by one man at a grocery store, and the other committed on January 17, 2012, by two men at an apparel store. The two victims of the grocery store robbery identified the defendant in a police lineup, and one of the victims also identified the defendant in a photographic array. The defendant's identity as one of the perpetrators of the apparel store robbery was established by other evidence.

At trial, the defendant made only a general objection to the sufficiency of the evidence. Therefore, he did not preserve for appellate review his contention that the People failed to adduce legally sufficient evidence to prove his guilt beyond a reasonable doubt (see CPL 470.05[2] ; People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), 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 ).

Next, although improper evidence was introduced before the grand jury, introduction of that evidence was merely an evidentiary error and not part of any "nefarious design to deliberately cause unfairness to defendant" ( People v. Wisdom , 23 N.Y.3d 970, 973, 989 N.Y.S.2d 678, 12 N.E.3d 1107 ; cf. People v. Huston , 88 N.Y.2d 400, 406–408, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ). Contrary to the defendant's contention, the evidentiary impropriety did not render the grand jury proceedings in violation of CPL article 195 to such a degree that the integrity of the proceedings was impaired and that prejudice to the defendant may have resulted (see CPL 210.35[5] ; People v. Wisdom , 23 N.Y.3d at 972–973, 989 N.Y.S.2d 678, 12 N.E.3d 1107 ; People v. Kappen , 142 A.D.3d 1106, 1106, 38 N.Y.S.3d 215 ; People v. Simon , 101 A.D.3d 908, 909, 954 N.Y.S.2d 899 ).

The defendant contends that the photographic and lineup identification procedures related to the robbery of the grocery store were unduly suggestive. To the extent that this contention is based on the apparent age of most of the fillers in the lineup, it is not preserved for appellate review because the defendant did not raise that contention before the hearing court (see CPL 470.05[2] ; People v. Mullings , 88 A.D.3d 745, 745, 930 N.Y.S.2d 279 ; People v. McFadden , 36 A.D.3d 631, 631, 831 N.Y.S.2d 79 ). In any event, the defendant's contentions regarding the composition of the photographic array and the lineup are without merit. The composition of the defendant's photograph in the photographic array was not so dissimilar to the other photographs as to "create a substantial likelihood that the defendant would be singled out for identification" ( People v. Chipp , 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Staton , 138 A.D.3d 1149, 1150, 31 N.Y.S.3d 136 ; People v. Cherry , 150 A.D.2d 475, 476, 541 N.Y.S.2d 78 ; cf. People v. Smith , 122 A.D.3d 1162, 1163–1164, 997 N.Y.S.2d 534 ). A review of the photographs of the lineup reveals that the lineup participants possessed physical characteristics that were reasonably similar to those of the defendant, and that the police took reasonable steps to conceal any differences between the appearances of the lineup participants and the defendant (see People v. Chipp , 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; People v. Chavez , 135 A.D.3d 952, 952, 23 N.Y.S.3d 389 ; People v. Jean–Baptiste , 57 A.D.3d 566, 567, 868 N.Y.S.2d 724 ).

The detective who conducted the lineup violated the defendant's right to counsel by failing to notify counsel of the lineup and afford counsel a reasonable opportunity to attend. As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup (see People v. LaClere , 76 N.Y.2d 670, 672, 563 N.Y.S.2d 30, 564 N.E.2d 640 ; People v. Coates , 74 N.Y.2d 244, 249, 544 N.Y.S.2d 992, 543 N.E.2d 440 ). There are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation. That occurs when the defendant is, in fact, represented in the matter, and the police know, or can be charged with knowledge of that representation (see People v. Bongarzone–Suarrcy , 6 N.Y.3d 787, 789, 811 N.Y.S.2d 292, 844 N.E.2d 746 ; see also People v. Carranza , 3 N.Y.3d 729, 729–730, 786 N.Y.S.2d 381, 819 N.E.2d 997 ). The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney. In either case, "[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant's lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made" ( People v. Mitchell , 2 N.Y.3d 272, 274–275, 778 N.Y.S.2d 427, 810 N.E.2d 879 ; see People v. Sharp , 36 Misc.3d 381, 383–384, 942 N.Y.S.2d 779 [Sup. Ct., Bronx County] ).

Here, the detective who conducted the lineup...