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People v. Cole

Supreme Court of New York, Third Department

May 18, 2017

WAYNE COLE, Appellant.

          Calendar Date: March 27, 2017

          Stephen W. Herrick, Public Defender, Albany (Christopher J. Ritchey of counsel), for appellant.

          P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

          Before: McCarthy, J.P., Garry, Egan Jr., Rose and Mulvey, JJ.


          Egan Jr., J.

         Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 30, 2014, upon a verdict convicting defendant of the crimes of attempted robbery in the second degree and assault in the second degree.

         On the afternoon of March 30, 2013, a 92-year-old woman (hereinafter the victim) left her home and walked to a CVS pharmacy located on Central Avenue in the City of Albany. While the victim was shopping, defendant entered the store briefly, wearing a dark-colored jacket with white stripes, a red knit beanie and dark glasses, and then exited. A short time later, defendant again entered the store and approached the pharmacy counter, where the victim sat waiting in a chair. Following a brief conversation with a pharmacy technician, defendant again left the store. After retrieving a black garbage bag from across the street, defendant removed his jacket, carefully folded and placed it inside of the bag and waited on the sidewalk outside of the CVS. When the victim emerged, defendant crossed the street and pursued the victim on a parallel track, during the course of which he was captured on a surveillance camera as he paused to cinch his dark hooded sweatshirt tightly around his face - obscuring the red knit beanie - and don a pair of gloves. The victim then crossed Central Avenue and, as she neared the intersection of Robin Street and Washington Avenue, defendant accosted her, knocked her to the ground, grabbed her by both arms and attempted to take her purse. In the course thereof, the victim's hearing aid was "knocked out, " and she sustained a significant fracture to the middle finger of her left hand, as well as severe swelling and bruising to, among other areas, her right arm.

         As a result of this incident, defendant was indicted and charged with attempted robbery in the second degree and assault in the second degree. A jury trial ensued, at the conclusion of which defendant was convicted as charged and thereafter was sentenced to concurrent prison terms of seven years followed by three years of postrelease supervision. Defendant's subsequent motion to set aside the verdict was denied, prompting this appeal.

         We affirm. Preliminarily, we reject defendant's assertion that the photo array prepared in this matter was unduly suggestive [1]. "Photo arrays are considered unduly suggestive and improper if they are arranged in a manner which creates a substantial likelihood that the defendant would be singled out for identification. While the physical characteristics of all the people included in an array must be similar, so that the viewer's attention is not particularly drawn to [the] defendant, there is no requirement that [the] defendant be surrounded by people nearly identical in appearance" (People v Lind, 20 A.D.3d 765, 766-767 [2005] [internal quotation marks, brackets and citations omitted], lv denied 5 N.Y.3d 830 [2005]; see People v Pleasant, ___ A.D.3d ___, ___, 2017 NY Slip Op 02843, *1 [2017]; People v Smith, 122 A.D.3d 1162, 1163 [2014]). Although the People bear the burden of "establish[ing] the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" (People v Smith, 122 A.D.3d at 1163 [internal quotation marks and citations omitted]; see People v Al Haideri, 141 A.D.3d 742, 743 [2016], lv denied ___ N.Y.3d ___ [Oct. 11, 2016]).

         As we are satisfied that the People met their initial burden in this regard, we turn to defendant's claimed infirmity in the array - namely, that of the six black men depicted therein, he was the only one with a freckled or pockmarked complexion, which was the salient facial characteristic observed by the identifying witness; accordingly, defendant's argument continues, the identifying witness's attention necessarily was drawn to his picture. Upon reviewing the subject array, we disagree.

         The array was comprised of six photographs, taken under similar lighting conditions and displaying virtually identical backgrounds, of six black men with little or no visible hair - all of whom were around the same age and each of whom was wearing a yellow jumpsuit. At least three of the six individuals depicted in the array had similarly uneven skin tone, and the purported freckles or pockmarks cited by defendant were not sufficiently visible so "that defendant's photo jumped out at the viewer based on the way the array was organized, " thereby signaling that he was the likely culprit (People v Lind, 20 A.D.3d at 767). Accordingly, we discern no basis upon which to disturb County Court's denial of defendant's suppression motion (see People v Pleasant, 2017 NY Slip Op 02843 at *2; People v Ruiz, 148 A.D.3d 1212, 1214-1215 [2017]; People v Matthews, 101 A.D.3d 1363, 1364-1365 [2012], lvs denied 20 N.Y.3d 1101, 1104 [2013]) and, similarly, have no quarrel with the subject witness's in-court identification of defendant at trial.

         Defendant's challenge to the admissibility of the victim's out-of-court statements to, among other, responding emergency services personnel, is equally unavailing. The crux of defendant's argument on this point is that, inasmuch as the People succeeded in having the victim - who suffered from dementia - declared to be incompetent to testify at trial (see CPL 60.20 [1]), the People should not have been able to utilize the victim's out-of-court statements, which implicated defendant in the charged crimes, simply because the victim was alert and oriented at the time such statements were made. Again, we disagree.

         "An out-of-court statement is properly admissible under the excited utterance exception [to the hearsay rule] when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication. Underlying this exception is the assumption that a person under the influence of excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he [or she] makes will be spontaneous and trustworthy" (People v Johnson, 1 N.Y.3d 302, 306 [2003] [internal quotation marks and citation omitted]; see People v Hibbert, 134 A.D.3d 957, 957 [2015], lvs denied 28 N.Y.3d 930, 937 [2016]). Where, as here, the declarant is deemed incompetent to testify at trial, the question becomes whether he or she was competent at the time that the out-of-court statements were made (see People v Sullivan, 117 A.D.2d 476, 478-479 [1986], lv denied 68 N.Y.2d 918');">68 N.Y.2d 918 [1986]).

         At trial, a firefighter - employed by the City of Albany and trained as an emergency medical technician - testified that his fire station received a report of a traumatic injury on the afternoon of March 30, 2013. Approximately one minute later, the firefighter and others arrived at the intersection of Washington Avenue and Robin Street in the City of Albany, where he observed the victim - "[v]ery upset and in distress." Although the victim was sitting in the back of a vehicle when the firefighter first encountered her, he testified that she "looked like she had been on the ground" as she was dirty and had "road gravel on her legs." As the firefighter approached the victim to inquire as to what had happened, the victim spontaneously stated, "He took my purse" or "[H]e tried to take my purse." In response to the firefighter's inquiry as to the extent of her injuries, the victim indicated that she ...

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