People v. Bell

Oct 1, 1999
Versions:265 A.D.2d 813
696 N.Y.S.2d 610
1999 N.Y. App. Div. LEXIS 9845

—Judgment unanimously affirmed. Memorandum: County Court properly denied defendant’s motion to suppress identification testimony. The People met their initial burden "of establishing the reasonable-

*814ness of the police conduct and lack of undue suggestiveness of the photo array, and defendant failed to meet his “ultimate burden of proving that the procedure was unduly suggestive” (People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). Because defendant failed to assert the affirmative defense that the weapon displayed was not loaded or capable of firing (see, Penal Law § 160.15 [4]), the court properly denied his request to charge the jury on the lesser included offense of robbery in the second degree (Penal Law § 160.10 [2] [b]; see, People v Cotarelo, 71 NY2d 941, 942-943; People v Baskerville, 60 NY2d 374, 380-382). Contrary to the contention of defendant, the evidence that he fled on foot when a uniformed officer yelled, “Freeze, Eugene”, is legally sufficient to support the conviction of resisting arrest (Penal Law § 205.30; see, CPL 120.80 [2]; see generally, People v Bleakley, 69 NY2d 490, 495). Furthermore, evidence that defendant possessed keys that unlocked the door and started the ignition of the stolen vehicle is legally sufficient to establish that he exercised dominion and control over the vehicle to support the conviction of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [1]; see, People v Manini, 79 NY2d 561, 573-574; People v Hadley, 67 AD2d 259, 262). The court properly exercised its discretion in determining that defendant could be cross-examined regarding certain prior crimes and bad acts that bore “logically on [defendant’s] credibility as a witness” (People v Gray, 84 NY2d 709, 712). Finally, the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Oneida County Court, Dwyer, J. — Robbery, 1st Degree.) Present — Green, J. P., Lawton, Pigott, Jr., Scudder and Balio, JJ.