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The People of the State of New York v. Mark Russell

September 4, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MARK RUSSELL, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Freedman, J.

People v Russell

Decided on September 4, 2012

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.

SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department

Angela M. Mazzarelli,J.P. David B. Saxe Karla Moskowitz Helen E. Freedman Sallie Manzanet-Daniels, JJ.

Defendant appeals from the judgment of the Supreme Court, Bronx County (Richard Lee Price, J.), rendered January 15, 2008, convicting him, after a jury trial, of robbery in the first degree, and imposing sentence.

FREEDMAN, J.

Defendant was convicted of robbery in the first degree (Penal Law § 160.15[4]) and sentenced to a nine year determinate sentence and five years postrelease supervision based on a single witness identification made 15 days after the robbery occurred. Upon exercising our independent factual review power (CPL 470.15), we find that the verdict was against the weight of the evidence (People v Danielson, 9 NY3d 342, 348-349 [2007]). The videotape depicting the robbery does not corroborate the complaining witness's identification, and, viewed as a whole, the evidence does not establish beyond a reasonable doubt that the identification was accurate.

On November 22, 2006 at approximately 6:00 p.m., the complainant had just closed her store at 256 East Gun Hill Road in the Bronx when two young black men, approached her and asked to enter the shop. She reopened the store and showed the men various items. Shortly thereafter, one of the men (not defendant) opened his jacket, displayed a gun and demanded to know where the money was. The other man, purportedly defendant, went behind the counter with the complainant and told her to put the money in a plastic bag. The gun holder ordered the complainant to the back of the store and tied her up with a wire. The complainant testified that she saw defendant's face at that time. When she tried to break free, the robbers tied her up tighter. She testified that she feared for her life at that point and throughout the robbery. After the robbers left, the complainant called her husband who immediately called the police. The police officers did not take fingerprints because, as they testified, the complainant stated that the robbers wore gloves. The wire used to tie the complainant's hands was tested for DNA, but nothing was found. The complainant described both robbers as being between 18 and 30 years old, five feet seven inches or five feet eight inches and having Jamaican accents, "a little." She also stated that the unarmed robber had a ponytail under his hat, but definitely not cornrows.

Fifteen days later, on December 7, 2006, the complainant, while a passenger in a car heading west and driven by her husband, passed 374 East Gun Hill Road, where defendant was sweeping the sidewalk in front of his aunt's store. The complainant, looking across four lanes of traffic, spotted defendant and asserted that he was the second (unarmed) robber. The complainant's husband pulled closer so that she could see defendant and she positively identified him. The police were called and, after the complainant spoke with them, defendant was arrested. About four hours later, the complainant identified defendant in a lineup; she was not specifically told that defendant would be in the lineup, nor did she see any of the fillers prior to her identification.

At trial, the complainant testified that she was certain that her identification was correct and that she saw defendant's face when he entered the store. She further testified that throughout the ordeal she feared for her life. Additionally, she testified that although she passed the store where defendant worked every day, she never saw him before or after the robbery until the day he was apprehended. She insisted that the robber had a ponytail, not cornrows.

Defendant denied any involvement in a robbery, testifying that he had worked at his aunt's store on the day of the robbery, closed it at the usual time, between 6:30 and 7:00 p.m., and had gone home. The videotapes of the robbery were introduced into evidence. Although there are several frontal views of the gun bearing perpetrator (who has not been apprehended), there are no similar views of the second robber, purportedly defendant. All of the views of the second person show him looking down to the side, including the view of the two robbers when they first entered the store. While, according to the police, the complainant reported that the robbers wore gloves, the video shows that they were not wearing gloves and that the second robber was biting his fingernails.

Defendant was 28 years old at the time of the robbery, and about five feet nine inches tall. He had several B misdemeanor convictions for possession of marijuana in a public place, but no other arrests. At the time of his arrest, he wore his hair in cornrows, and both he and his aunt testified that he always wore his hair in cornrows. Defendant, whose parents are from Jamaica, was born in New York City where he was living with his large family in Brooklyn, and had worked in family businesses, earning from $26,000 to $40,000 a year, since finishing high school. He had been working in his aunt's store on Gun Hill Road, and was working there both at the time of the robbery and 15 days later when he was arrested. He and his aunt testified that he was being paid $300 a week. He also testified that he had never bitten his fingernails and demonstrated that to the jury.

In asserting that his conviction stemmed from a misidentification, defendant points to various discrepancies in testimony, including the complainant's statement that the robbers wore gloves and the police officers' reliance on this statement in not looking for fingerprints, although the video plainly shows that this was not the case. The video also shows both robbers looking down when they entered the store, but the complainant testified that ...


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