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

1313
KA 12-00294
PRESENT: SMITH, J.P., LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADONIS LINDER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered July 29, 2009. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree,
criminal possession of a weapon in the third degree and attempted
robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
nonjury trial of assault in the second degree (Penal Law § 120.05
[2]), criminal possession of a weapon in the third degree (§ 265.02
[3]), and attempted robbery in the first degree (§§ 110.00, 160.15
[2]), defendant contends that County Court erred in failing to
suppress identification evidence on the ground that it was the product
of an unlawful detention. Although defendant’s omnibus motion sought,
inter alia, suppression of any and all evidence obtained by the police
as a result of what he alleged to have been an unlawful detention, the
court held only a Wade hearing and did not rule on the legality of the
detention. By failing to seek a ruling on that part of his omnibus
motion challenging the detention and by failing to object to the
identification testimony on that ground at trial, defendant abandoned
his challenge to the detention (see People v Adams, 90 AD3d 1508,
1509, lv denied 18 NY3d 954; People v Anderson, 52 AD3d 1320, 1321, lv
denied 11 NY3d 733). In any event, we note that “the factual
assertions contained in defendant’s moving papers were insufficient to
warrant a hearing” on the issue of the alleged illegality of the
detention (People v Battle, 109 AD3d 1155, 1157; see People v Mendoza,
82 NY2d 415, 425-427).

     Having viewed a copy of the photo array shown by the police to
the victims, we further conclude that the court properly determined
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                                                         KA 12-00294

that the array was not unduly suggestive, inasmuch as “the subjects
depicted in the photo array are sufficiently similar in appearance so
that the viewer’s attention is not drawn to any one photograph in such
a way as to indicate that the police were urging a particular
selection” (People v Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d
646; see People v Plumley, 111 AD3d 1418, 1420). Nor was there any
evidence at the Wade hearing indicating that the identification
procedures employed by the police were unduly suggestive (see People v
McCurty [appeal No. 2], 60 AD3d 1406, 1407, lv denied 12 NY3d 856).

     Viewing the evidence in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), we conclude that the evidence
is legally sufficient to establish defendant’s commission of the
offenses in question. Not only was defendant identified at trial by
one of the victims, but the People introduced a notarized letter
written by defendant prior to trial in which he admitted his
involvement in the crimes and accepted “full responsibility for the
home invasion/shooting” he was alleged to have committed with others.
Although it was one of the codefendants and not defendant who shot the
victim in the foot outside the victim’s apartment, there is a valid
line of reasoning and permissible inferences that could lead a
rational person to conclude that defendant, who was chasing the victim
at the time with a loaded assault rifle, shared the codefendant’s
intent to cause injury to the victim, an element of assault in the
second degree as charged under Penal Law § 120.05 (2). Further,
viewing the evidence in light of the elements of the crimes in this
nonjury trial (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to preserve for our review his contention that
the indictment failed to give him fair notice “as to what specific
conduct was alleged” in the two counts charging assault in the second
degree, i.e., counts two and nine (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]).
Contrary to defendant’s related contention, the failure of the
indictment to distinguish between the two counts of assault does not
constitute a mode of proceedings error to which the rules of
preservation do not apply. With respect to his mode of proceedings
contention, defendant relies on, inter alia, People v McNab (167 AD2d
858, 858), wherein we held that the “defendant’s right to be tried and
convicted of only those crimes charged in the indictment is
fundamental.” Here, unlike in McNab and its progeny (see e.g. People
v Boykins, 85 AD3d 1554, lv denied 17 NY3d 814; People v Comfort, 31
AD3d 1110, lv denied 7 NY3d 847; People v Burns, 303 AD2d 1032), there
is no danger that defendant was convicted of an unindicted act. Count
nine of the indictment was dismissed prior to trial, leaving count two
as the only assault charge. As the People correctly note, the grand
jury minutes make clear that the prosecutor, in instructing the grand
jurors, stated that count two related to the shooting of the victim
outside his apartment and that count nine related to the shooting
inside the apartment. In rendering its verdict, the court offered
detailed findings of fact demonstrating that it found defendant guilty
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                                                         KA 12-00294

of assault in the second degree for the shooting outside the
apartment. It therefore follows that defendant was convicted under
count two of the same conduct for which he was indicted under count
two, and there was no variance in fact or theory (cf. People v Grega,
72 NY2d 489, 495-496). In addition, because this was a bench trial,
there is no danger that the conviction was the result of a
non-unanimous verdict (cf. Boykins, 85 AD3d at 1555; People v Jacobs,
52 AD3d 1182, 1183, lv denied 11 NY3d 926).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
