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People v. Harris

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TRAVIS J. HARRIS, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered October 30, 2002. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree, attempted assault in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ.

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

Memorandum

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, burglary in the first degree (Penal Law § 140.30 [4]) and attempted assault in the first degree (§§ 110.00, 120.10 [1]). As we previously determined on the appeal of the co-defendant, Supreme Court did not err in charging the jury with respect to attempted assault in the first degree (People v McDaniels, 19 AD3d 1071, lv denied 5 NY3d 830). Defendant's further contention that the evidence is legally insufficient to support the conviction of attempted assault is not preserved for our review because defendant failed to renew his motion for a trial order of dismissal on that ground after presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678; McDaniels, 19 AD3d 1071). We also reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).

Contrary to the further contention of defendant, we conclude that the police had reasonable suspicion to stop defendant based on the totality of the circumstances (see People v Kirkland, 49 AD3d 1260, lv denied 10 NY3d 958, 961; see generally People v Martinez, 80 NY2d 444, 447). Here, the record of the suppression hearing establishes that the police encountered defendant in proximity to the street where the police had observed that the suspects had abandoned their car and had fled on foot, there were no other pedestrians in the area, there was minimal vehicular traffic, and defendant was dressed inappropriately for the extremely cold weather. We further conclude that, although defendant appeared in handcuffs and was escorted by police officers, the showup identification procedure was not unduly suggestive (see People v Jackson, 281 AD2d 906, 907-908, lv denied 96 NY2d 920). The record of the suppression hearing establishes that the showup was conducted approximately one hour after the crimes were committed and within three miles of the location where defendant was stopped by the police (see People v Rodgers, 6 AD3d 464, 465, lv denied 2 NY3d 805; People v Bonilla, 299 AD2d 934, 935, lv denied 99 NY2d 580; People v Hunt, 277 AD2d 911, 911-912). Finally, the sentence is not unduly harsh or severe.

20081231

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