The People of the State of New York, Respondent, v Wayne Cole, Appellant.
Appellate Division of the Supreme Court of the State of New York, Third Department
52 NYS3d 744
Egan Jr., J.
On the afternoon of March 30, 2013, a 92-year-old woman (hereinafter the victim) left her home and walked to a CVS
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
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 AD3d at 767). Accordingly, we discern no basis upon which to disturb County Court‘s denial of defendant‘s suppression motion (see People v Pleasant, 149 AD3d 1257, 1258 [2017]; People v Ruiz, 148 AD3d 1212, 1214-1215 [2017]; People v Matthews, 101 AD3d 1363, 1364-1365 [2012], lv denied 20 NY3d 1101 [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 others, 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
“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 the 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 NY3d 302, 306 [2003] [internal quotation marks and citation omitted]; see People v Hibbert, 134 AD3d 957, 957 [2015], lv denied 28 NY3d 930 [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 AD2d 476, 478-479 [1986], lv denied 68 NY2d 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 had been “thrown to the ground” and described pain to her left hand and knee, and the firefighter observed injuries that were consistent with the victim‘s description of the assault.
In addition to the foregoing, two other individuals (a father and his daughter), who came upon the scene while the assault was still in progress, also testified as to statements made by the victim immediately following the incident. The daughter testified that, as she and her father approached the subject intersection in their vehicle, she heard a woman screaming for help and immediately pulled over, whereupon she saw the
While the victim indeed appeared “frazzled,” the firefighter, who had responded to “thousands of calls a year” over the course of a 10-year period, testified that such behavior was “typical” of someone who had suffered “[a] traumatic experience.” As for the victim‘s demeanor and mental status, the firefighter testified that the victim was “[a]lert and oriented. She knew exactly where she was. She knew exactly what happened to her.” The firefighter further testified that the victim responded to all of his questions appropriately, such as indicating where she lived and where she had been immediately prior to the assault, and rejected any assertion that the victim was confused. Such testimony, in our view, was more than sufficient to establish that the victim made the statements at issue while under the stress caused by the attempted robbery and assault and, further, was competent at the time that she made them. Accordingly, County Court properly admitted such statements under the excited utterance exception to the hearsay rule (see People v Reyes, 144 AD3d 1683, 1685 [2016]; People v Knapp, 139 AD2d 931, 931 [1988], lv denied 72 NY2d 862 [1988]). Moreover, the victim‘s statements also were properly admissible under
As noted previously, the firefighter, the father and the daughter each testified as to the statements made by the victim at the scene, and the daughter recounted her observations of the victim screaming for help as she was being dragged along the sidewalk by her assailant. In addition to the foregoing, the victim‘s treating physician testified as to the injuries that the victim sustained as a result of the assault, which included a badly fractured middle finger on her left hand, and additional proof was tendered to establish the respective ages of the victim and defendant at the time thereof. With respect to the issue of identification, the daughter indeed was unable to identify defendant as the perpetrator, but both she and her father provided detailed descriptions of the victim‘s assailant and the specific and distinctive clothing that he was wearing—descriptions that were entirely consistent with both defendant‘s physical characteristics and the clothing that subsequently was seized from defendant‘s residence and a neighbor‘s apartment (and admitted into evidence at trial)—and the father thereafter identified defendant, both prior to and at trial, as the victim‘s assailant.
In addition to the father‘s testimony on this point, the People introduced surveillance footage from various vantage points, which depicted defendant walking behind the victim on the way to CVS, twice entering the store while the victim was inside (on one occasion standing a short distance away from and looking directly at her), waiting outside on the sidewalk
Defendant‘s remaining contentions do not warrant extended discussion. Defendant‘s claim of prosecutorial misconduct, which finds its roots in certain allegedly improper comments made by the prosecutor during the People‘s summation, is—in the admitted absence of timely objections—unpreserved for our review (see People v Rivera, 124 AD3d 1070, 1074-1075 [2015], lv denied 26 NY3d 971 [2015]; People v Green, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]). Further, “corrective action in the interest of justice is unwarranted . . . [where, as here,] the challenged statements generally constituted fair comment on the evidence [,] . . . were made in response to defense counsel‘s summation . . . and . . . were not so pervasive or flagrant as to require reversal” (People v Fomby, 101 AD3d 1355, 1357 [2012] [internal quotation marks and citation omitted]).
Finally, we reject defendant‘s claim that the sentence imposed was harsh and excessive. “It is well settled that a sentence that falls within the permissible statutory range [ ] will not be disturbed unless it can be shown that the sentencing court abused its discretion or that extraordinary circumstances exist warranting a modification in the interest of justice” (People v Simmons, 122 AD3d 1169, 1169 [2014] [internal quotation marks, brackets and citations omitted], lv denied 25 NY3d 1171 [2015]). Here, defendant preyed upon and attacked an elderly woman suffering from dementia—conduct for which, according to the presentence investigation
McCarthy, J.P., Garry, Rose and Mulvey, JJ., concur. Ordered that the judgment is affirmed.