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People v. Pleasant

Supreme Court of New York, Third Department

April 13, 2017


          Calendar Date: February 23, 2017

          Stephen E. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

          P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

          Before: Peters, P.J., McCarthy, Garry, Rose and Aarons, JJ.


          Garry, J.

         Appeal from a judgment of the Supreme Court (McDonough, J.) in Albany County, rendered April 18, 2014, upon a verdict convicting defendant of the crimes of robbery in the first degree and strangulation in the second degree.

         The 19-year-old victim was walking alone in the City of Albany at about 2:00 a.m. when a man suddenly attacked her from behind, strangled her into unconsciousness and robbed her of her iPhone. Using GPS technology, police found the phone the next day, in defendant's possession. Following a jury trial, defendant was convicted of robbery in the first degree and strangulation in the second degree. Supreme Court sentenced him as a predicate felony offender to a prison term of 18 years with five years of postrelease supervision for the robbery conviction and a concurrent prison term of seven years with five years of postrelease supervision for the strangulation conviction. Defendant appeals.

         Initially, we reject defendant's contention that Supreme Court erred in denying his motion to suppress his pretrial identifications by the victim and by another witness, each of whom selected defendant's photograph in separate photo arrays. An identification must be suppressed as unduly suggestive when it results from a procedure that "depicts a unique characteristic which draws the viewer's attention so as to indicate that the police have selected a particular individual" (People v Parker, 257 A.D.2d 693, 694 [1999], lv denied 93 N.Y.2d 1024');">93 N.Y.2d 1024 [1999]; accord People v Smith, 122 A.D.3d 1162, 1163 [2014]). Here, the testimony describing the procedures by which police developed the arrays and carried out the identifications satisfied the People's "initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in [the] pretrial identification procedure" (People v Chipp, 75 N.Y.2d 327, 335 [1990], cert denied 498 U.S. 833');">498 U.S. 833 [1990]). The burden thus shifted to defendant to prove that the procedures used were unduly suggestive (see id.; People v Reynoso-Fabian, 134 A.D.3d 1141, 1145 [2015]; People v Smith, 122 A.D.3d at 1163). Defendant did not, however, establish the existence of any feature of the photo arrays that would have improperly drawn a viewer's attention to defendant's photograph. Our review reveals that the men depicted in both photo arrays appear to be of about the same age, are similarly dressed and have similar skin coloring, haircuts and facial hair. The backgrounds are uniformly nondescript, and defendant's picture does not stand out in any way.

         Further, no undue suggestiveness was shown in the double blind procedure used to administer the identifications, by which the officers who conducted the identifications were not familiar with defendant or the investigation. Defendant asserts that the photographs should have been selected to correspond with the attacker's height as described by the victim, but the heights of the depicted persons cannot be discerned from the photographs, which show only their heads and shoulders. Thus, defendant did not establish that the photo arrays "create[d] a substantial likelihood that [he] would be singled out for identification, " and his suppression motion was properly denied (People v Chipp, 75 N.Y.2d at 336; accord People v Lanier, 130 A.D.3d 1310, 1312 [2015], lv denied 26 N.Y.3d 1009');">26 N.Y.3d 1009 [2015]).

         Next, we find no merit in defendant's contention that the victim's iPhone should not have been admitted into evidence because the chain of custody was broken when the phone was temporarily returned to the victim between defendant's arrest and the trial. When real evidence is alleged to be the object associated with a crime, the People must establish its authenticity by showing "first, that the evidence is identical to that involved in the crime; and, second, that it has not been tampered with" (People v Julian, 41 N.Y.2d 340, 342-343 [1977]). A strict chain of custody may be used to establish these requirements for fungible items such as currency or drugs (see e.g. People v Carter, 131 A.D.3d 717, 722-723 [2015], lv denied 26 N.Y.3d 1007');">26 N.Y.3d 1007 [2015]). When, however, "an object possesses unique characteristics or markings and is not subject to material alteration which is not readily apparent, a simple identification is sufficient to warrant admission, " even in the absence of a complete chain of custody (People v Julian, 41 N.Y.2d at 343 [internal quotation marks and citation omitted]; accord People v Shoga, 89 A.D.3d 1225, 1226 [2011], lv denied 18 N.Y.3d 886');">18 N.Y.3d 886 [2012]; see People v Basciano, 109 A.D.2d 945, 946 [1985]).

         Here, the victim identified the iPhone in her testimony, stating that the phone appeared to be in the same or substantially the same condition, and confirming that it contained her information, contacts and music. Additionally, a police officer testified that he took photographs of the phone and its identifying numbers after it was taken from defendant and before it was returned to the victim, and that the photographs depicted the same phone that the victim identified in court. This was clearly sufficient to support the admission of the phone without proof of the chain of custody (see People v Bautista, 147 A.D.3d 1214, 1217 [2017]; People v Roblee, 83 A.D.3d 1126, 1127 [2011], lv denied 17 N.Y.3d 809');">17 N.Y.3d 809 [2011]; People v Weiler, 194 A.D.2d 894, 895 [1993], lv denied 82 N.Y.2d 728');">82 N.Y.2d 728 [1993]). Any uncertainty that may have resulted from the period of time that the phone was out of the People's custody was pertinent to the weight to be accorded to the evidence rather than its admissibility (see People v Gamble, 135 A.D.3d 1078, 1080 [2016], lv denied 27 N.Y.3d 997');">27 N.Y.3d 997 [2016]; People v Howard, 305 A.D.2d 869, 870 [2003], lv denied 100 N.Y.2d 583');">100 N.Y.2d 583 [2003]).

         Defendant next contends that the verdict was against the weight of the evidence because the People failed to prove his identity as the victim's attacker [1]. The victim testified that, several hours before the attack, she walked from her home in the City of Albany to a location on Pearl Street to attend a party. At approximately 1:40 a.m., she left the party alone and began to walk home. She acknowledged that she had ingested some drugs and alcohol during the evening and "was feeling woozy" when she left the party. She walked for about half an hour, using headphones to listen to music on her iPhone. As she was walking in the vicinity of Washington Park, she saw a man's shadow on her right. Startled, the victim took out one of the headphones and looked at the man for about five seconds. He then "came around the back of [her]" without touching her, walked in front of her and bent down about half a block ahead of her to tie his shoe. The victim walked past him and, about 15 to 30 seconds later, the man "came up from behind [her] and put his arm around [her] neck and choked her out." The victim was dragged to the ground and lost consciousness; when she awoke, she saw the man who had attacked her running into the park about 120 feet away. Her phone and headphones were no longer in her possession. The next morning, she contacted police, who located the phone in defendant's possession; defendant was using the phone and claimed to have found it. [2]

         At trial, the victim identified defendant as the man who attacked her, but acknowledged that she did not manage to get a good look at her attacker and that, due to her intoxicated condition, her memory of the night of the incident was "[n]ot very good." Further, the police officers who interviewed the victim testified that the description she provided on the morning after the attack did not correspond with defendant's physical characteristics; she described a "skinny" man who was approximately 5 feet 6 or 7 inches tall, while defendant was 6 feet 1 inch tall with a muscular build.

         Significantly, however, the victim was not the sole witness to identify defendant at trial. The People also presented the testimony of a witness who testified that he was in the area of Washington Park on the night of the incident and saw the victim twice - first, late in the evening as she walked toward downtown Albany, and then again in the early hours of the following morning as she walked in the opposite direction, heading up Washington Avenue. He noticed and remembered the victim because of her attractive appearance; he described the clothing that she was wearing in detail, and identified the garments at trial. When he saw the victim the second time, early in the morning, she was alone and wearing headphones. The witness was near the park, walking a short distance in front of the victim, when a man whom he subsequently identified as defendant "jump[ed] out on [him]." The witness stated that he and defendant were about three inches apart and looked each other in the eyes for a few seconds; defendant then "dart[ed]" past him into the park. A few moments later, the witness sat down on a nearby bench. The victim walked past him and the witness then saw defendant again, behind the victim and "close enough where he just walked right past me and I can see everything." As the victim continued walking, the witness saw defendant "running in and out, like walking fast in and out of the bushes." The witness testified that he saw defendant approach the victim without coming close enough to touch her several times. He realized "there was something going on, " but could not call police because his phone was not working; he got up and tried ...

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