People v. Vazquez

• Decision Date: 27 September 2019
• Docket Number: KA 16–00850,838
• Citation: 175 A.D.3d 1822,107 N.Y.S.3d 767 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Abdiel VAZQUEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1822

107 N.Y.S.3d 767 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Abdiel VAZQUEZ, Defendant–Appellant.

838

KA 16–00850

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

Entered: September 27, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree ( Penal Law § 160.10 [1 ] ). Defendant contends on appeal that Supreme Court erred in determining following a pretrial hearing that the victim had an independent basis for his in-court identification of defendant. We reject that contention. The victim testified that he had an unobstructed view of defendant's face for over five minutes in well-lit areas inside and outside his residence during the commission of the offense (see People v. Young , 20 A.D.3d 893, 894, 798 N.Y.S.2d 625 [4th Dept. 2005], affd 7 N.Y.3d 40, 817 N.Y.S.2d 576, 850 N.E.2d 623 [2006] ; People v. Lopez , 85 A.D.3d 1641, 1642, 924 N.Y.S.2d 871 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ). The court properly concluded that the People established by clear and convincing evidence that the victim's observations of defendant during the commission of the crime provided an independent basis for an in-court identification (see generally People v. Marshall , 26 N.Y.3d 495, 504, 25 N.Y.S.3d 58, 45 N.E.3d 954 [2015] ). Finally, the sentence is not unduly harsh or severe.