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People v. Marryshow

Supreme Court of New York, Third Department

June 21, 2018


          Calendar Date: May 2, 2018

          Russell A. Schindler, Kingston, for appellant.

          D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

          Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.


          Clark, J.

         Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 8, 2015, upon a verdict convicting defendant of the crimes of robbery in the first degree, arson in the third degree and grand larceny in the fourth degree.

         In November 2010, defendant was charged by indictment with robbery in the first degree, arson in the third degree and grand larceny in the fourth degree. The charges arose out of allegations that, on a morning in June 2010, defendant stole a dark green 2001 Honda Accord from the home of an elderly couple, set fire to a barn in the Town of Woodstock, Ulster County and, while the authorities were responding to the fire, robbed a nearby bank at gunpoint, making off with roughly $25, 000. In June 2015, following his apprehension in Oregon by a United States marshal, defendant stood trial before a jury, at the conclusion of which he was found guilty as charged. County Court subsequently sentenced him, as a second felony offender, to an aggregate prison term of 15 years, followed by five years of postrelease supervision. Defendant now appeals, and we affirm.

         Initially, we reject defendant's assertion that Monique Mikell, a witness for the prosecution, should not have been permitted to identify him at trial as the individual she saw driving a green Honda at roughly 7:00 a.m. on the morning in question because her in-court identification was the product of an unduly suggestive photo array. A photo array is unduly suggestive if some feature or characteristic of one of the depicted individuals or photographs is so unique or distinctive that it draws the viewer's attention to that photograph, thereby indicating that the police have selected that particular individual (see People v Pleasant, 149 A.D.3d 1257, 1257 [2017], lv denied 30 N.Y.3d 1022 [2017]; People v Al Haideri, 141 A.D.3d 742, 743 [2016], lv denied ___ N.Y.3d ___ [Oct. 11, 2016]; People v Smith, 122 A.D.3d 1162, 1163 [2014]). While it is not required that the individuals in a photo array be nearly identical to the defendant, their characteristics must be "sufficiently similar" to those of the defendant, "so as to not 'create a substantial likelihood that the defendant would be singled out for identification'" (People v Lanier, 130 A.D.3d 1310, 1312 [2015], lv denied 26 N.Y.3d 1009 [2015], quoting People v Chipp, 75 N.Y.2d 327, 336 [1990], cert denied 498 U.S. 833');">498 U.S. 833 [1990]; see People v Cole, 150 A.D.3d 1476, 1477-1478 [2017]). The People bear the initial burden of establishing the reasonableness of police conduct and the absence of any undue suggestiveness; however, the defendant has the ultimate burden of proving that the pretrial identification procedure was unduly suggestive (see People v Delamota, 18 N.Y.3d 107, 118 [2011]; People v Chipp, 75 N.Y.2d at 335; People v Sullivan, 300 A.D.2d 689, 690 [2002], lv denied 100 N.Y.2d 587');">100 N.Y.2d 587 [2003]).

         Our review of the evidence presented at the Wade hearing, as well as the photo array including defendant, reveals that neither the pretrial identification procedure nor the photo array was unduly suggestive. Specifically, the evidence established that, at the start of her interview, Mikell was shown two separate photo arrays, each depicting six male individuals who were selected for inclusion in the arrays through the use of a computer program [1]. The evidence demonstrated that defendant was included only in the second photo array and that Mikell did not see the second photo array until after she reviewed the first photo array - which was built around a different person of interest - and affirmatively stated that she did not recognize anyone. As further established by the testimony, after being shown the second photo array, Mikell indicated that she recognized defendant as the person who drove past her on the morning of June 30, 2010 in a green Honda.

         The photo array itself depicted six males, who all appeared to be of the same general age and stature and had similar hair length and styles, eye color and shape and facial expressions. In addition, each individual was dressed in a prison jumpsuit and wore a white shirt underneath. Five of the six photographs, including defendant's photograph, were taken in front of a block wall that were either identical or substantially similar in color, while the remaining photograph had a different, but similarly colored, backdrop. Furthermore, the photographs were "cropped in a manner that render[ed] height comparisons speculative" (People v Lanier, 130 A.D.3d at 1313), and they all appeared to have been taken from approximately the same distance. While defendant argues that the photo array was unduly suggestive because there were no other black individuals depicted, we note that all six men were of varying skin tones and that defendant's skin color was not so distinctive that it would have drawn the viewer's attention to that photograph, so as to create a substantial likelihood that he would be singled out for identification (see People v Quintana, 159 A.D.3d 1122, 1127 [2018], lv denied ___ N.Y.3d ___ [May 30, 2018]; People v Ruiz, 148 A.D.3d 1212, 1214 [2017], lv denied 30 N.Y.3d 983');">30 N.Y.3d 983 [2017]; People v Matthews, 101 A.D.3d 1363, 1364 [2012], lvs denied 20 N.Y.3d 1101, 1104 [2013]). Accordingly, upon our review of both the pretrial identification procedure and the photo array, we are satisfied that neither was unduly suggestive (see People v Al Haideri, 141 A.D.3d at 743; People v Taylor, 300 A.D.2d 746, 747-748 [2002], lv denied 2 N.Y.3d 746');">2 N.Y.3d 746 [2004]). As County Court properly denied the motion to suppress Mikell's pretrial identification of defendant, we find no error in allowing Mikell to identify defendant in court (see People v Asai, 66 A.D.3d 1138, 1140-1141 [2009]).

         Defendant also challenges the robbery and arson convictions as being unsupported by legally sufficient evidence and against the weight of the evidence. Specifically, defendant argues that the People failed to establish his identity as the perpetrator of those crimes beyond a reasonable doubt. As relevant here, "[a] person is guilty of robbery in the first degree when he [or she] forcibly steals property and when, in the course of the commission of the crime..., he [or she]... [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" (Penal Law § 160.15 [4]). Additionally, "[a] person is guilty of arson in the third degree when he [or she] intentionally damages a building... by starting a fire" (Penal Law § 150.10 [1]).

         At trial, defendant did not strongly contest the evidence establishing his identity as the perpetrator of grand larceny in the fourth degree; nor does he challenge the evidence supporting that conviction on appeal. Indeed, the trial evidence established that, at 7:00 a.m. on the day in question, an elderly woman looked out from her kitchen window and observed a "great tall fellow" get into the dark green 2001 Honda Accord that belonged to her and her husband and "take off" down her driveway. Mikell, who was walking her dog on the elderly woman's street around 7:00 a.m. that same morning, testified that she observed an individual - whom she ultimately identified as defendant - driving at a high rate of speed in a green Honda. Both DNA and fingerprint evidence placed defendant in the stolen Honda Accord, which was located roughly 2½ hours after its theft, at approximately 9:30 a.m., several hundred yards from defendant's family home.

         With respect to defendant's convictions for robbery in the first degree and arson in the third degree, the People's case was largely circumstantial, as they solely relied on eyewitness testimony to establish defendant's identity as the arsonist and bank robber. To that end, the People presented the testimony of a volunteer firefighter, who testified that, around 9:00 a.m. on the day in question, he observed a green sedan parked across the street from a barn on Route 212 and then spotted a masked individual, who he could not identify as male or female, standing in the weeds, holding a red gas can. He described the masked individual as roughly six feet tall and slender and stated that the person was wearing a dark jacket and sweatpants, a hood and orange gloves. The People also offered the testimony of another eyewitness who was driving on Route 212, near the barn, around the same time. This eyewitness testified that she observed a tall, slender individual dressed in a black jacket and "grayish" sweatpants run into the road carrying a red gas can and get into a dark green Honda sedan. She stated that, although she did not see the individual's face, she assumed that the person was a man because of his "height and general build." The evidence established that the fire department responded to a fire at the barn around 9:00 a.m. that day and that a subsequent investigation into the cause of the fire revealed that gas was used as an accelerant.

         As to the bank robbery, the People relied on the testimony of three eyewitnesses: a motorist who observed a dark-colored Honda turn into the bank, a bank teller and the bank manager. The motorist testified that, as he was driving to work around 9:10 a.m., he observed a dark-colored Honda pull up behind him at an intersection and noticed that the driver, who was wearing ski goggles and some sort of winter mask or scarf, appeared to be "anxious." Both the bank teller and the bank manager gave similar descriptions of the robber. In particular, the teller testified that a man came into the bank yelling, swearing and brandishing a black handgun and he was dressed in "winter clothes, " including long pants, a peacoat, a gray cap, orange gloves, goggles and a mask. Similarly, the manager testified that the robber stood roughly 6 feet 2 inches tall and wore a mask, ski goggles, a hooded sweatshirt, a hat, a peacoat and orange gloves. He stated that, following the robbery, he observed the individual drive off in a dark green late model Honda Accord. It was further established that the bank manager was familiar with defendant, having attended high school with him and interacted with him as a customer at the bank, and that the manager considered both defendant and the robber to have a high-pitched voice. Significantly, the jurors saw surveillance video of the bank robbery from different angles and were able to draw their own ...

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