People v. Robinson

Mar 19, 2004
Versions:5 A.D.3d 1077
773 N.Y.S.2d 662
2004 N.Y. App. Div. LEXIS 2878

*1078Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered August 29, 2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [2]). Defendant’s first trial ended in a mistrial after the jury was deadlocked. Contrary to defendant’s contentions, County Court properly admitted testimony concerning a pretrial photo identification “to correct a misapprehension created by the defense regarding the issue of identification” (People v Bailey, 257 AD2d 432, 433 [1999], lv denied 93 NY2d 966 [1999]; see People v Williams, 286 AD2d 918, 920 [2001], lv denied 97 NY2d 763 [2002]); the verdict is not against the weight of the evidence on the issue of identification (see People v Bleakley, 69 NY2d 490, 495 [1987]); and the court properly determined that the photo array was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People v Parker, 257 AD2d 693, 693-694 [1999], lv denied 93 NY2d 1024 [1999]). Defendant’s additional contention that the People’s use of testimony from the first trial was not authorized pursuant to CPL 670.10 (1) is not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The sentence is not unduly harsh or severe. We have considered the contentions of defendant in his pro se supplemental brief and conclude that they are without merit. Present—Pine, J.P., Wisner, Scudder, Kehoe and Lawton, JJ.