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

1224
KA 10-02344
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRYAN BASSETT, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered September 9, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the second degree (Penal Law §
160.10 [2] [b]). Viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). “Although a different result would not have been unreasonable,
the jury was in the best position to assess the credibility of the
witnesses and, on this record, it cannot be said that the jury failed
to give the evidence the weight it should be accorded” (People v Orta,
12 AD3d 1147, 1147, lv denied 4 NY3d 801).

     We reject defendant’s further contention that the showup
identification procedure resulting in identifications made by two
witnesses was unduly suggestive and that County Court erred in
refusing to suppress the identifications. Prompt showup
identification procedures that are conducted in geographic and
temporal proximity to the crime “are not ‘presumptively infirm,’ and
in fact have generally been allowed” (People v Ortiz, 90 NY2d 533,
537, quoting People v Duuvon, 77 NY2d 541, 543). Here, the showup
identification procedure was reasonable because it was conducted
within 200 yards of the scene of the crime, within 20 minutes of the
commission of the crime, and in the course of a continuous, ongoing
investigation (see People v Brisco, 99 NY2d 596, 597; People v Lewis,
97 AD3d 1097, 1098, lv denied 19 NY3d 1103). Moreover, the two
                                 -2-                          1224
                                                         KA 10-02344

witnesses were placed in different police vehicles and remained apart
throughout the showup identification procedure. Thus, “ ‘it cannot be
said that the [witnesses] were in such proximity while viewing
[defendant] that there was an increased likelihood that if one of them
made an identification the other[] would concur’ ” (People v Woodard,
83 AD3d 1440, 1441, lv denied 17 NY3d 803).

     Defendant’s contention that he was denied a fair trial based on
the prosecutor’s improper questions on cross-examination of defendant
and improper comments during summation is not preserved for our review
inasmuch as defendant failed to object to those instances of alleged
misconduct (see CPL 470.05 [2]). We decline to exercise our power to
review defendant’s contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]; see also People v
Washington, 89 AD3d 1516, 1516-1517, lv denied 18 NY3d 963). Finally,
the sentence is not unduly harsh or severe.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
