People v. Rivera

• Decision Date: 27 December 2012
• Citation: 957 N.Y.S.2d 423,101 A.D.3d 1478,2012 N.Y. Slip Op. 09101
• Parties: The PEOPLE of the State of New York, Respondent, v. Angel D. RIVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1478
957 N.Y.S.2d 423
2012 N.Y. Slip Op. 09101

The PEOPLE of the State of New York, Respondent,
v.
Angel D. RIVERA, Appellant.

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

Dec. 27, 2012.

[957 N.Y.S.2d 424]

Joseph Nalli, Fort Plain, for appellant.

James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), for respondent.

Before: PETERS, P.J., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.

KAVANAGH, J.

[101 A.D.3d 1478]Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered November 15, 2010, upon a verdict convicting defendant of the crimes of robbery in the second degree and petit larceny.

At approximately 3:15 p.m. on February 23, 2010, a man brandishing a handgun committed a robbery at a convenience store located on Reid Street in the City of Amsterdam, Montgomery County. Moments

[957 N.Y.S.2d 425]

after the perpetrator fled the premises, the police stopped defendant and detained him not far from the store because he and the clothing he was wearing matched the [101 A.D.3d 1479]description given of the perpetrator by witnesses to the robbery. After he was brought back to the crime scene, defendant was identified by Sashona Perry as an individual she saw entering, then exiting, the convenience store at about the time the robbery took place. As a result, defendant was arrested and later charged by indictment with robbery in the second degree and petit larceny. Subsequently, he moved to suppress certain evidence, including Perry's testimony identifying him as the perpetrator of this crime. After a Wade hearing, that motion was denied and a jury trial was conducted at which defendant was found guilty as charged.¹ Thereafter, defendant was sentenced, as a second felony offender, to 12 years in prison plus five years of postrelease supervision on the robbery conviction and a concurrent term of one year in jail for his conviction of petit larceny. Defendant now appeals.

Defendant initially claims that County Court erred when it denied his motion to suppress because Perry's identification of him was secured as the result of a suggestive showup conducted by the police shortly after the robbery was committed. “Showup identifications are permissible where the showup was ‘conducted in close geographic and temporal proximity to the crime ... and the procedure used was not unduly suggestive’ ” ( People v. Harris, 64 A.D.3d 883, 883, 883 N.Y.S.2d 621 [2009],lv. denied13 N.Y.3d 836, 890 N.Y.S.2d 452, 918 N.E.2d 967 [2009], quoting People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003];see People v. Judware, 75 A.D.3d 841, 843, 906 N.Y.S.2d 139 [2010],lv. denied15 N.Y.3d 853, 909 N.Y.S.2d 30, 935 N.E.2d 822 [2010];People v. Wicks, 73 A.D.3d 1233, 1235, 900 N.Y.S.2d 485 [2010],lv. denied15 N.Y.3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010];People v. Tillman, 57 A.D.3d 1021, 1023, 867 N.Y.S.2d 793 [2008] ). Here, defendant was identified by Perry within 45 minutes of the robbery when he was brought to the crime scene in an unmarked car by police. He was not handcuffed or otherwise restrained and Perry was simply told prior to making her identification that she was not to assume that defendant was the person she saw at the store at about the time the robbery was committed ( see People v. Judware, 75 A.D.3d at 843, 906 N.Y.S.2d 139). Given the time, place, and circumstances under which the identification was made, we find that the showup was not unduly suggestive and defendant's motion to suppress was properly denied.

As for defendant's challenge to the weight of the evidence,² we must, since a different verdict would not have been unreasonable[101 A.D.3d 1480], “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony”

[957 N.Y.S.2d 426]

( People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted]; see People v. Shepherd, 83 A.D.3d 1298, 1298, 921 N.Y.S.2d 666 [2011],lv. denied17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). Specifically, defendant claims that the People failed to prove beyond a reasonable doubt that he was the perpetrator of the robbery. We disagree.

At trial, the owner of the convenience store, Shagufta Nasir, testified that she was working alone at the store when a man brandishing a handgun entered the premises wearing a scarf that covered a portion of his face. He ordered her to give him money from the cash register and threatened to kill her if she called the police. Nasir identified defendant as the perpetrator based on his eyes, the color of his skin and the clothing he was wearing when apprehended by the police. Because Nasir was unable to identify defendant as the perpetrator at the scene shortly after the robbery took place, her in-court identification of him was obviously suspect. However, Perry testified that moments before the robbery, she was leaving the store when a man entered with a scarf that covered his mouth and part of his nose. She recalled that the man was also wearing a white “hoodie” sweatshirt underneath a winter jacket, which had fur around its hood. A short time later, Perry was across the street when she observed the same man, his face now uncovered, walking briskly away from the store, and his jacket was partially opened revealing that it had an orange-colored lining. At trial, Perry identified defendant as the man she saw at the store, and she testified that the clothing taken from him after his arrest was similar...