People v. Rios

CourtNew York Supreme Court Appellate Division
Writing for the CourtD'AMICO
Citation899 N.Y.S.2d 769,72 A.D.3d 1489
Decision Date30 April 2010
PartiesThe PEOPLE of the State of New York, Respondent, v. Elvin RIOS, Defendant-Appellant. (Appeal No. 1.)
899 N.Y.S.2d 769
72 A.D.3d 1489


The PEOPLE of the State of New York, Respondent,
v.
Elvin RIOS, Defendant-Appellant. (Appeal No. 1.)


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

April 30, 2010.

899 N.Y.S.2d 770

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant-Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND GREEN, JJ.

MEMORANDUM:

72 A.D.3d 1490

In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of burglary in the first degree (Penal Law § 140.30[2], [3] ) and one count of robbery in the first degree (§ 160.15[3] ). In appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of forgery in the second degree (§ 170.10[1] ).

Defendant failed to preserve for our review his contention in appeal No. 1 that the conviction of burglary in the first degree and robbery in the first degree is not supported by legally sufficient evidence ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention in appeal No. 1 that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We reject the contention of defendant in each appeal that County Court erred in refusing to suppress the victim's identification of him in a photo array. The court was entitled to credit the testimony of the police officers at the suppression hearing that they did not urge the victim to make a particular selection from the photo array. We perceive no basis to disturb that credibility determination inasmuch as it cannot be said that the photo array was unduly suggestive ( see People v. Diggs, 19 A.D.3d 1098, 796 N.Y.S.2d 802, lv. denied 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668, amended on rearg. 21 A.D.3d 1438, 801 N.Y.S.2d 551; see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

Defendant further contends in each appeal that the court erred in...

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4 practice notes
  • Rios v. Lempke, 11-CV-00205F
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 22 Mayo 2014
    ...affirmed by the New York State Supreme Court Appellate Division, Fourth Department ("the Appellate Division"). People v. Rios, 899 N.Y.S.2d 769 (App. Div. 4th Dep't. 2010) (Appeal on First Indictment), and People v. Rios, 898 N.Y.S.2d 923 (App. Div. 4th Dep't. 2010) (Appeal on Second Indict......
  • People v. Goins, 1243
    • United States
    • New York Supreme Court Appellate Division
    • 5 Febrero 2021
    ...that the witness was not urged or influenced in any way to make a particular selection from the photo array ( see People v. Rios , 72 A.D.3d 1489, 1490, 899 N.Y.S.2d 769 [4th Dept. 2010], lv denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 [2010], reconsideration denied 16 N.Y.3d 799......
  • People v. Ward
    • United States
    • New York Supreme Court Appellate Division
    • 22 Marzo 2013
    ...265.03[3] ), defendant contends that Supreme Court abused its discretion in consolidating two indictments for trial ( see People v. Rios, 72 A.D.3d 1489, 1490–1491, 899 N.Y.S.2d 769,lv. denied15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059). We reject that contention. Although the indictme......
  • Lewis v. Lustan
    • United States
    • New York Supreme Court Appellate Division
    • 30 Abril 2010
    ...of harm, can be found to have vicious propensities-albeit only when such proclivity results in the injury giving rise to the lawsuit"899 N.Y.S.2d 769( Collier v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d ......
4 cases
  • Rios v. Lempke, 11-CV-00205F
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 22 Mayo 2014
    ...affirmed by the New York State Supreme Court Appellate Division, Fourth Department ("the Appellate Division"). People v. Rios, 899 N.Y.S.2d 769 (App. Div. 4th Dep't. 2010) (Appeal on First Indictment), and People v. Rios, 898 N.Y.S.2d 923 (App. Div. 4th Dep't. 2010) (Appeal on Second Indict......
  • People v. Goins, 1243
    • United States
    • New York Supreme Court Appellate Division
    • 5 Febrero 2021
    ...that the witness was not urged or influenced in any way to make a particular selection from the photo array ( see People v. Rios , 72 A.D.3d 1489, 1490, 899 N.Y.S.2d 769 [4th Dept. 2010], lv denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 [2010], reconsideration denied 16 N.Y.3d 799......
  • People v. Ward
    • United States
    • New York Supreme Court Appellate Division
    • 22 Marzo 2013
    ...265.03[3] ), defendant contends that Supreme Court abused its discretion in consolidating two indictments for trial ( see People v. Rios, 72 A.D.3d 1489, 1490–1491, 899 N.Y.S.2d 769,lv. denied15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059). We reject that contention. Although the indictme......
  • Lewis v. Lustan
    • United States
    • New York Supreme Court Appellate Division
    • 30 Abril 2010
    ...of harm, can be found to have vicious propensities-albeit only when such proclivity results in the injury giving rise to the lawsuit"899 N.Y.S.2d 769( Collier v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d ......

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