People v. Morgan

• Citation: 625 N.Y.S.2d 673,214 A.D.2d 809
• Parties: The PEOPLE of the State of New York, Respondent, v. John V. MORGAN, Appellant.
• Decision Date: 13 April 1995
• Court: New York Supreme Court Appellate Division

Page 673

625 N.Y.S.2d 673

214 A.D.2d 809

The PEOPLE of the State of New York, Respondent, v. John V. MORGAN, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 13, 1995.

Marshall Nadan, Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Gudesblatt Lamb, of counsel), Kingston, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

WHITE, Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 14, 1992, upon a verdict convicting defendant of three counts of the crime of robbery in the first degree.

Between November 30, 1990 and January 7, 1991, the City of Kingston area in Ulster County was plagued by a number of convenience store robberies perpetrated by a single individual wielding a knife. In the early morning hours of January 8, 1991, Police Detective Stephen Spetalieri observed and stopped defendant's vehicle at the toll booth of the Kingston-Rhinecliff Bridge. Defendant voluntarily accompanied Spetalieri to the police station where he was placed in an interview room. Spetalieri then viewed a video tape made by a hidden camera located in the convenience store that had been robbed on January 7, 1991. Thereafter, he placed defendant under arrest and advised him of his Miranda rights. Ultimately, defendant was convicted of three counts of robbery in the first degree and sentenced as a second felony offender to two consecutive and one concurrent indeterminate terms of incarceration of 12 1/2 to 25 years. Defendant appeals.

When this case was previously before us, 200 A.D.2d 856, 608 N.Y.S.2d 876, we withheld determination of the appeal and remitted the matter to County Court for a hearing on the issue of whether defendant was present at a Sandoval hearing. Following a reconstruction hearing, County Court (Bruhn, J.) found that he was.

For the reasons that follow, we shall not disturb County Court's finding. Inasmuch as the Sandoval hearing was conducted in open court, we agree with County Court that the presumption of regularity applies to this matter and that defendant did not overcome the presumption with his conclusory statement that he was not present at the hearing (see, People v. Robinson, 191 A.D.2d 523, 595 N.Y.S.2d 56, lv. denied 81 N.Y.2d 1018, 600 N.Y.S.2d 207, 616 N.E.2d 864). Moreover, the record strongly suggests that defendant was present. Immediately at the conclusion of the Sandoval hearing, County Court directed that the jury be brought in and proceeded to give its preliminary instructions. Had defendant not been present, it can be reasonably inferred that County Court would not have proceeded in this fashion.

Defendant further argues that County Court erred in permitting the People to elicit Spetalieri's opinion that defendant was the robber depicted in the video. It is now accepted that a lay witness may give an opinion concerning the identity of a person depicted in a surveillance photograph if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury (see, United States v. Stormer, 938 F.2d 759, 761; United States v. Robinson, 804 F.2d 280, 282; People v. Russell, 79 N.Y.2d 1024, 1025, 584 N.Y.S.2d 428, 594 N.E.2d 922).

Thus, in United States v. Towns, 913 F.2d 434, where the robber disguised his appearance and changed it prior to trial, his girlfriend was permitted to testify that he was the robber in a bank surveillance photograph. Likewise, in People v. Russell, supra, where the defendant deliberately changed his appearance to thwart identification, witnesses who knew him and saw him on or about the date of the crime were permitted to give their opinion that the defendant was the person depicted in a surveillance photograph (see also, United States v. Jackson, 688 F.2d 1121, cert. denied 460 U.S. 1043, 103 S.Ct. 1441, 75 L.Ed.2d 797 [where a witness who met the defendant only once was allowed to testify despite the absence of evidence that the defendant changed his appearance].

In this instance, Spetalieri encountered defendant less than five hours after the commission of the crime and remained with him for four or five hours during which time he had the opportunity to observe his facial features, physical characteristics, mannerisms and clothing. There was also evidence that defendant had changed his appearance prior to trial by discarding his glasses and shaving off his beard. In view of these circumstances, we conclude that County Court did not...