Office of Stephen N. Preziosi, P.C., New York, NY, for
Madeline Singas, District Attorney, Mineola, NY (Jason R.
Richards and John B. Latella of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B.
AUSTIN, SHERI S. ROMAN, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Nassau
County (Honorof, J.), rendered November 22, 2013, convicting
him of assault in the first degree (two counts) and assault
in the second degree (four counts), upon a jury verdict, and
imposing sentence. The appeal brings up for review the
denial, after a hearing pursuant to a stipulation in lieu of
motions (Peck, J.), of the suppression of identification
that the judgment is modified, on the law, by vacating the
convictions of assault in the second degree under counts six
and seven of the indictment, vacating the sentences imposed
thereon, and dismissing those counts of the indictment; as so
modified, the judgment is affirmed.
Supreme Court properly denied suppression of identification
testimony. There was no hearing testimony establishing that
police involvement tainted any of the identification
procedures (cf. People v Stevens, 44 A.D.3d 882,
883). There is also no basis to find that the lineup
procedures were unduly suggestive simply because the lineups
were conducted after the witnesses had selected the
defendant's photo from an array (see People v
Rodriguez, 64 N.Y.2d 738, 740-741; People v
Rodriguez, 17 A.D.3d 267, 268). Moreover, since the
issue before the court was whether there was probable cause
to arrest the defendant based on the photo array, defense
counsel was properly prevented from cross-examining a police
witness regarding the eyewitnesses' descriptions of the
assailant (see People v Hoehne, 203 A.D.2d 480,
481). The defendant's claim that the court improperly
denied his application for disclosure of the identification
witnesses' identities is also without merit (see
People v Granville, 221 A.D.2d 558; People v
McAvoy, 142 A.D.2d 605, 605-606).
defendant's contention that the trial testimony of a
police detective implicitly bolstered the witnesses'
identification of the defendant from the photo arrays and
lineup procedures is unpreserved for appellate review
(see CPL 470.05). In any event, the bolstering
contention regarding the lineup is without merit, as the
detective never testified that any of the witnesses viewing
the lineup made an identification (see People v
Fingall, 136 A.D.3d 622, 623). The defendant waived any
contention of bolstering with regard to the photo arrays, as
testimony regarding the arrays was first elicited not by the
People but by defense counsel (see People v Bryan,
50 A.D.3d 1049, 1050-1051).
defendant's contention that the Supreme Court erred in
allowing prejudicial mugshot photos of the defendant to be
introduced into evidence is unpreserved for appellate review
(see CPL 470.05) and, in any event, without merit
(see People v Esdaille, 160 A.D.2d 811, 812).
the Supreme Court's charge relating to assault in the
first degree was correct because the defendant, expressly
electing to pursue a defense of misidentification only,
conceded the elements of the crime to which he now objects
(see People v Lewis, 92 A.D.3d 442, 443; People
v Baker, 298 A.D.2d 104).
People correctly concede that two of the defendant's
convictions of assault in the second degree must be vacated,
and those counts of the indictment dismissed, as they are
inclusory concurrent counts of assault in the first degree
(see CPL 300.30; 300.40[b]; Penal Law
§§ 120.05, ; 120.10; People v
LaConte, 45 A.D.3d 699, 699-700; People v
DeFreitas, 19 A.D.3d 506, 507). However, the
defendant's contention that the counts of assault in the
first degree were multiplicitous is unpreserved for appellate
review (see CPL 470.05 ; People v Wall,
92 A.D.3d 812, 813) and, in any event, without merit (see
People v Saunders, 290 A.D.2d 461, 463).
to the defendant's contention, the verdict was not
repugnant. There is no requirement that the defendant be
found guilty of a completed felony in order to sustain a
conviction of assault in the first degree under a theory of
felony assault (see People v Williams, 83 A.D.3d
defendant's remaining contentions are without merit.
MASTRO, J.P., LEVENTHAL, AUSTIN ...