        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

73
KA 11-01291
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JABRE DAVIS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JABRE DAVIS, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered March 30, 2010. 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 is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of murder in the second degree (Penal Law § 125.25 [1]) and
criminal possession of a weapon in the second degree (§ 265.03 [3]),
defendant contends in his main and pro se supplemental briefs that the
verdict is against the weight of the evidence. We reject that
contention. As defendant concedes, he was present when the victim was
shot in the head at close range, and he was identified as the shooter
in separate showup procedures by two eyewitnesses to the shooting,
both of whom later identified defendant in a lineup. Moreover, one of
the eyewitnesses also identified defendant in a surveillance video
taken at a store that defendant had entered shortly before the
shooting occurred. The video showed defendant and the three other men
who were with him when the victim was shot, one of whom defendant
claims to have been the shooter. Upon observing the four men in the
video, the eyewitness informed the police that, although he initially
doubted whether he had correctly identified defendant in the showup
procedure, he was now certain that defendant was the person he had
seen shoot the victim. At trial, both eyewitnesses unequivocally
identified defendant as the shooter. The eyewitnesses did not know
defendant prior to the shooting, and neither had any apparent motive
to accuse him falsely.
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                                                         KA 11-01291

     In addition to the eyewitness testimony, the People introduced
evidence that, after the shooting, defendant ran from the scene and
hid in a nearby house, which was surrounded by the police. Defendant
refused to come out of the house for approximately 30 minutes and,
when he eventually emerged, he was wearing a different shirt than the
one he had been wearing when the victim had been shot. Defendant then
lied to the police, stating that he had not heard any shots being
fired and that he had not observed the victim involved in an
altercation immediately before the fatal shot was fired. Defendant’s
actions following the shooting evinced a consciousness of guilt.

     As defendant correctly notes, both eyewitnesses testified that
the shooter had been wearing a white T-shirt with air brushing on the
front and back, and the surveillance video showed that defendant was
wearing a white T-shirt with air brushing on the front only, while
another man present at the time of the shooting had been wearing a
white T-shirt with air brushing on the front and back. The other man
in a white T-shirt was not apprehended and was not identified.
Defendant also points to the fact that the police searched the house
into which defendant fled, as well as the surrounding neighborhood,
and did not find any firearms. We note, however, that the prosecutor
argued that defendant had sufficient time in which to hide the murder
weapon before he entered the house and that, given the chaotic scene
following the shooting, the eyewitnesses were simply mistaken
regarding the presence of air brushing on the back of the shooter’s T-
shirt.

     This case turned largely upon the reliability, as opposed to the
credibility, of the two eyewitnesses who repeatedly and consistently
identified defendant as the shooter, and neither of whose
identification was influenced by the other. We are mindful that
“mistaken eyewitness identifications play a significant role in many
wrongful convictions” (People v Santiago, 17 NY3d 661, 669), and we
are cognizant of our duty to conduct an independent assessment of all
of the proof (see People v Delamota, 18 NY3d 107, 116-117). In our
view, however, this is not an appropriate case to substitute our
reliability determinations for those of the jury, inasmuch as the
identifications of defendant by the eyewitnesses were not “incredible
and unbelievable, that is, impossible of belief because [they were]
manifestly untrue, physically impossible, contrary to experience, or
self-contradictory” (People v Rumph, 93 AD3d 1346, 1347, lv denied 19
NY3d 967 [internal quotation marks omitted]; see People v Wallace, 306
AD2d 802, 802-803). “Sitting as the thirteenth juror . . . [and]
weigh[ing] the evidence in light of the elements of the crime[s] as
charged to the other jurors” (People v Danielson, 9 NY3d 342, 349), we
conclude that, although a different verdict would not have been
unreasonable, it cannot be said that the jury failed to give the
evidence the weight it should be accorded (see generally People v
Bleakley, 69 NY2d 490, 495; People v Kalen, 68 AD3d 1666, 1666-1667,
lv denied 14 NY3d 842).

     Defendant further contends that the identifications of him by the
two eyewitnesses were the product of inherently suggestive showup
procedures, and that County Court therefore erred in denying his
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                                                         KA 11-01291

motion to suppress their identification testimony. We reject that
contention as well. Although showup identification procedures are
generally disfavored (see People v Ortiz, 90 NY2d 533, 537), such
procedures are permitted “where [they are] reasonable under the
circumstances—that is, when conducted in close geographic and temporal
proximity to the crime—and the procedure used was not unduly
suggestive” (People v Brisco, 99 NY2d 596, 597; see Ortiz, 90 NY2d at
537; People v Jackson, 78 AD3d 1685, 1685-1686, lv denied 16 NY3d
743). Here, the showups were conducted within 70 minutes of the
shooting, during the “course of a continuous, ongoing investigation”
(People v Woodward, 83 AD3d 1440, 1441, lv denied 17 NY3d 803; see
Brisco, 99 NY2d at 597), and less than one half of a mile from the
crime scene. Thus, the court properly denied defendant’s motion to
suppress the subject identification testimony.

     Contrary to defendant’s further contention, the identification of
him by one of the prosecution witnesses in the store surveillance
video was not unduly suggestive. “[T]here is nothing inherently
suggestive” in showing a witness a surveillance video depicting the
defendant and other individuals, provided that the “defendant was not
singled-out, portrayed unfavorably, or in any other manner prejudiced
by police conduct or comment or by the setting in which [the
defendant] was taped” (People v Edmonson, 75 NY2d 672, 676-677, rearg
denied 76 NY2d 846, cert denied 498 US 1001). Here, defendant was
shown in the video with three other people, one of whom defendant
claims to have been the shooter, and defendant was not singled out or
portrayed unfavorably, or in any other manner prejudiced. In a
related contention, defendant asserts that the identification of him
in the surveillance video is tantamount to an identification from a
photo array, and that the court therefore erred in allowing the
witness in question to testify at trial that he identified defendant
in the video. Defendant failed to preserve that contention for our
review, and we decline to exercise our power to review it as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     There is no merit to defendant’s contention that the lineup
procedures employed by the police were unduly suggestive. Although
defendant and one filler have somewhat lighter skin than the other
participants, it is well settled that the police need not surround a
defendant in a lineup with individuals nearly identical in appearance
(see People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833; People
v Diggs, 19 AD3d 1098, 1099, lv denied 5 NY3d 787, amended on rearg 21
AD3d 1438). Having reviewed photographs of defendant with the other
lineup participants, we conclude that the “the alleged variations in
appearance between the fillers and the defendant were not so
substantial as to render the lineup impermissibly suggestive” (People
v Brown, 89 AD3d 1032, 1033, lv denied 18 NY3d 922).

     We have reviewed defendant’s remaining contentions in his main
and pro se supplemental briefs and conclude that they lack merit.

Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
