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

772
KA 13-02138
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VERNIEL L. WILSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, MULDOON, GETZ & RESTON
(GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.

VERNIEL L. WILSON, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Douglas A.
Randall, J.), rendered November 1, 2013. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree,
robbery in the second degree and attempted robbery 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 robbery in the first degree (Penal Law § 160.15 [4]),
robbery in the second degree (§ 160.10 [1]), and attempted robbery in
the second degree (§§ 110.00, 160.10 [1]), defendant contends that
County Court erred in refusing to suppress the identifications of him
by the victims on the grounds that he was unlawfully detained by the
police and that the showup procedures were unduly suggestive. We
reject that contention. “The police had reasonable suspicion to stop
and detain defendant for a showup identification based on . . . a
radio transmission providing a general description of the
perpetrator[s] of [the] crime[s, the] proximity of the defendant to
the site of the crime[s], the brief period of time between the
crime[s] and the discovery of the defendant near the location of the
crime[s], and the [officers’] observation of the defendant, who
matched the radio-transmitted description [of one of the
perpetrators]” (People v Owens, 39 AD3d 1260, 1261, lv denied 9 NY3d
849 [internal quotation marks omitted]; see People v Smith, 128 AD3d
1434, 1434, lv denied 26 NY3d 1011; People v Mitchell, 118 AD3d 1417,
1418, lv denied 24 NY3d 963; People v Evans, 34 AD3d 1301, 1302, lv
denied 8 NY3d 845). With respect to the showup procedures, we
conclude that they were not unduly suggestive. “[T]he victim[s’]
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                                                         KA 13-02138

observation of defendant being removed from a patrol car, and the fact
that defendant was handcuffed, did not render the showup[s] unduly
suggestive as a matter of law” (Smith, 128 AD3d at 1435; see People v
Boyd, 272 AD2d 898, 899, lv denied 95 NY2d 850; People v Aponte, 222
AD2d 304, 304-305, lv denied 88 NY2d 980).

     Contrary to defendant’s contention, defense counsel was not
ineffective for failing to call a cross-racial identification expert
at trial (see White v Georgia, 293 Ga 635, 636-637; see generally
People v Jones, 85 AD3d 612, 614, affd 21 NY3d 449), especially
considering that defendant was identified both by an individual of the
same race and by an individual of a different race. Nor was counsel
ineffective in failing to timely request a missing witness charge.
Defendant was acquitted of the charge relating to the missing witness,
and thus he suffered no prejudice from counsel’s alleged misstep in
that regard (see People v Santana, 114 AD3d 557, 558, lv denied 23
NY3d 1067; see generally People v Stultz, 2 NY3d 277, 284, rearg
denied 3 NY3d 702; People v Glanda, 18 AD3d 956, 960, lv denied 6 NY3d
754, reconsideration denied 6 NY3d 848).

     In his pro se supplemental brief, defendant contends that the
court erred in admitting testimony that violated his constitutional
right of confrontation (see Crawford v Washington, 541 US 36, 50-54).
As defendant correctly concedes, however, that contention is not
preserved 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]). We have reviewed defendant’s remaining
contentions, including the additional claim of ineffective assistance
of counsel asserted in his pro se supplemental brief, and we conclude
that they lack merit.




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
