People v. HydePeople v. Hyde
Appeal from a judgment of the Supreme Court (Monserrate, J.), rendered August 18, 1995 in Otsego County, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), robbery in the first degree (two counts) and criminal use of a firearm in the first degree.
On the evening of May 20, 1994, defendant entered his previous place of employment—the Great American grocery store in the Town of Oneonta, Otsego County—wearing a ski mask and hat and armed with a loaded sawed-off .410-gauge shotgun. After kicking in the door to an office where two employees were counting the store’s daily proceeds, defendant brandished the shotgun and demanded the money. He left the office moments later with approximately $5,000 in cash. In a heroic effort to apprehend defendant, off-duty State Police Officer Ricky Parisian, who was shopping with his wife that evening, was shot in the chest by defendant and died of his injuries. During this struggle, Parisian was able to unmask defendant and strip off his shirt in front of a store employee, Erik Simmons, and a shopper, Carol Dufresne. Shirtless and covered in blood, defendant fled.
As a result of this incident, an eight-count indictment was handed up against defendant and, following a jury trial, he was convicted of two counts of murder in the second degree (intentional murder [count 1] and felony murder [count 2]), two counts of robbery in the first degree (serious physical injury [count 6] and armed with a deadly weapon [count 7]) and crim
Defendant contends that Supreme Court should have suppressed in-court identifications given by Dufresne, Simmons and another store employee, Janet Hanson, because a pretrial photographic array viewed by them was impermissibly suggestive. Suppression was properly denied. Having observed the photographic array, we note that obvious care was taken to procure five other male subjects with similar physical attributes to defendant. The six men in the photographic array were young and had similar coloring, builds and facial features (each was clean-shaven with short hair). Although defendant was the only individual depicted wearing a dark hooded sweatshirt, the other five men were not uniformly dressed; rather, they were each wearing varying, amorphous apparel. There was nothing conspicuous about any of the photographs, particularly that of defendant, to draw a viewer’s attention to it. Consequently, the photographs used in the array were sufficiently similar to defendant in appearance that there was no reasonable possibility that the attention of these witnesses would have been drawn to defendant as the suspect chosen by the police (see, People v Chipp,
Accordingly, we agree with Supreme Court that the People satisfied their initial burden of coming forward with evidence establishing the reasonableness of the police conduct and lack of suggestiveness. That being the case, the burden shifted to defendant to establish that the identification procedure was unduly suggestive (see, e.g., People v Chipp, supra, at 335). This he failed to do. Defendant’s argument that the photographic array was suggestive is premised on the notion that the perpetrator of the armed robbery and murder was described as wearing a black sweatshirt during the commission of the crimes and defendant was the only individual in the photographic array wearing a "black”
The fallacy of this argument is quite simple—defendant produced no evidence during the Wade hearing that these wit
At a reopened Wade hearing on this precise issue, Dufresne and Simmons testified in accordance with their police statements, and defense counsel opted not to examine Hanson although she had been made available for this purpose. Under these circumstances, we find that defendant failed in his burden of proving that the array was unduly suggestive (cf., People v Owens, supra; People v Lloyd,
In imposing sentence, Supreme Court directed that the three concurrent sentences imposed for the robbery convictions and the criminal use of a firearm conviction were to be served consecutively to the sentence imposed for intentional murder. With one exception, we find that the sentences imposed were legal. Pursuant to Penal Law § 70.25 (2) and the Court of Appeals’ decision in People v Laureano (
We note that "consecutive sentences may be imposed when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” (People v Ramirez,
We have reviewed defendant’s remaining contentions and find them to be without merit.
Cardona, P. J., White, Casey and Spain, JJ., concur. Ordered that the judgment is modified, on the law, by directing that the sentence for robbery in the first degree (count 6) run concurrently with the sentence for murder in the second degree (count 1), and, as so modified, affirmed.
Notes
We note that the photograph of defendant is in black and white.