SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
November 24, 2009
THE PEOPLE, ETC., RESPONDENT,
RAHSHEEM MOSS, APPELLANT.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered March 14, 2008, convicting him of robbery in the second degree and robbery in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Ayres, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
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.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER & L. PRISCILLA HALL, JJ.
(Ind. No. 2033/07)
DECISION & ORDER
ORDERED that the judgment is affirmed.
To the extent the defendant relies on portions of the trial record in support of his contention that a showup identification procedure was unduly suggestive, this Court is precluded from reviewing trial testimony in determining whether the hearing court acted properly (see People v South, 47 AD3d 734, 735; People v Kendrick, 256 AD2d 420). The propriety of the hearing court's ruling must be determined only in light of the evidence that was before that court (see People v Gonzalez, 55 NY2d 720, 721-722, cert denied 456 US 1010; People v South, 47 AD3d at 735; People v Kendrick, 256 AD2d 420). Since the defendant did not seek to reopen the hearing based on the trial testimony, or move for a mistrial, the question of whether the trial testimony undermined the hearing court's determination with respect to the showup identification procedure is not properly before this Court (see People v Feinsod, 278 AD2d 335; People v Kendrick, 256 AD2d 420). In any event, the defendant's contention in this regard is without merit (see People v Brisco, 99 NY2d 596, 597; People v Ortiz, 90 NY2d 533, 537; People v Duuvon, 77 NY2d 541, 543; People v Gonzalez, 57 AD3d 560, 561; People v Berry, 50 AD3d 1047, 1048).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
RIVERA, J.P., FLORIO, MILLER and HALL, JJ., concur.
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