People v. Leigh

• Decision Date: 15 September 2022
• Docket Number: 108968
• Citation: 208 A.D.3d 1463,174 N.Y.S.3d 494
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth LEIGH, Appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1463
174 N.Y.S.3d 494

The PEOPLE of the State of New York, Respondent,
v.
Kenneth LEIGH, Appellant.

108968

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

Calendar Date: August 17, 2022
Decided and Entered: September 15, 2022

174 N.Y.S.3d 495

Cappy Weiner, Kingston, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Before: Clark, J.P., Pritzker, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

174 N.Y.S.3d 496

208 A.D.3d 1463

Appeal from a judgment of the County Court of Rensselaer County (Andrew G. Ceresia, J.), rendered June 24, 2016, upon a verdict convicting defendant of the crime of burglary in the second degree.

Defendant was charged by indictment with burglary in the second degree, robbery in the second degree, grand larceny in the fourth degree, petit larceny and two other misdemeanor offenses stemming from allegations that, in March 2015, defendant and two others unlawfully entered an apartment in the Town of Schodack, Rensselaer County from which they stole property while the victim was inside. Following a jury trial, defendant was convicted of burglary in the second degree and acquitted of the remaining counts.¹ After the jury was discharged, defendant orally moved to set aside the verdict arguing that his conviction for burglary in the second degree was repugnant to and inconsistent with the jury finding him not guilty of the remaining counts. County Court denied the motion. After another unsuccessful motion to set aside the verdict, defendant was sentenced, as a second felony offender, to a

208 A.D.3d 1464

prison term of 10 years, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant contends that the victim's identification during trial was unduly influenced by a prior photo array in which his eyes were overly distinctive. We disagree. "In cases where there has been no pretrial identification procedure or the witness is unable to render a positive identification of the defendant, and the defendant is identified in court for the first time, the defendant is not deprived of a fair trial because the defense counsel is able to explore weaknesses and suggestiveness of the identification in front of the jury" ( People v. Johnson, 197 A.D.3d 725, 727, 153 N.Y.S.3d 156 [2d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1097, 156 N.Y.S.3d 792, 178 N.E.3d 439 [2021] ; see People v. Madison, 8 A.D.3d 956, 957, 778 N.Y.S.2d 593 [4th Dept. 2004], lv denied 3 N.Y.3d 709, 785 N.Y.S.2d 36, 818 N.E.2d 678 [2004] ). Here, it is undisputed that the victim was unable to render a positive identification from the photo array. Therefore, she was not precluded from making an in-court identification of defendant (see People v. Johnson, 197 A.D.3d at 727, 153 N.Y.S.3d 156 ; People v. Morales, 176 A.D.3d 1235, 1235, 109 N.Y.S.3d 650 [2d...