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

944
KA 10-02194
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM BOLDEN, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered October 8, 2010. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree and 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 following a
jury trial of robbery in the first degree (Penal Law § 160.15 [3]) and
robbery in the second degree (§ 160.10 [1]), defendant contends that
the evidence is legally insufficient to support the conviction and
that the verdict is against the weight of the evidence because the
People failed to prove beyond a reasonable doubt that he was the
person who committed the crimes with the codefendant, who was tried
jointly with defendant and also convicted. We reject defendant’s
contentions.

     The evidence at trial established that the victim rode his
bicycle to a gas station in Buffalo at 5:30 a.m. on the day in
question. After purchasing cigarettes, the victim observed a black
Chevy Trailblazer with front-end damage pull up to the gas pump.
There were two African-American men in the Trailblazer, one of whom
the victim had known since childhood but whose name he could not
recall. The victim approached the Trailblazer and chatted with the
two men, who were drinking from a bottle of Grey Goose vodka. After
approximately five minutes of conversation, the man whom the victim
knew exited the vehicle and struck the victim’s head with the bottle.
The other man then slammed the victim to the ground and, while the
victim was face-down on the ground, one of the two perpetrators
searched the victim’s pockets and took his cell phone, cash and
cigarettes before driving away in the Trailblazer. The victim rode
his bicycle to a nearby pay phone and called 911. The police arrived
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                                                         KA 10-02194

within minutes and took a statement from the victim, who, according to
one of the responding officers, appeared disheveled and upset. The
officers then began to search for the perpetrators.

     Within 20 minutes of the robbery, the police observed a black
Chevy Trailblazer with front-end damage parked on the street within a
quarter of a mile from the crime scene. Defendant was in the driver’s
seat of the vehicle, and the codefendant was in the front passenger’s
seat. After approaching the vehicle and detaining defendant and the
codefendant, both of whom are African-American, the police dialed the
victim’s cell phone number, whereupon a cell phone in the vehicle
started to ring. The police seized the phone, which was later
determined to belong to the victim, along with a pack of cigarettes
found in the center console. In addition, the police found an empty
bottle of Grey Goose vodka on the ground next to the vehicle, and
another bottle inside the vehicle. During a police-arranged showup
identification procedure conducted within 30 minutes of the crime, the
victim identified both defendant and the codefendant as the men who
robbed him. At trial, the victim again made a positive identification
of defendant and the codefendant, and he testified that during a break
in the trial defendant approached him and offered to give everything
back to him.

     Viewing the evidence in the light most favorable to the People,
as we must (see People v Contes, 60 NY2d 620, 621), we conclude that
there is a “valid line of reasoning and permissible inferences which
could lead a rational person” to conclude that defendant participated
in the robbery with the codefendant (People v Bleakley, 69 NY2d 490,
495). Moreover, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally id.). Even assuming, arguendo, that a
different verdict would not have been unreasonable, we conclude that
it cannot be said that the jury failed to give the evidence the weight
it should be accorded (see People v Kalen, 68 AD3d 1666, 1666-1667, lv
denied 14 NY3d 842; see generally Bleakley, 69 NY2d at 495).

     Defendant further contends that the police unlawfully seized him
and that Supreme Court therefore erred in refusing to suppress the
physical evidence thereafter obtained by the police. We reject that
contention as well. As noted, within 20 minutes of the crime,
defendant was observed in the driver’s seat of a vehicle that matched
the detailed description of the vehicle used by the robbers. The
vehicle was located a quarter of a mile from the crime scene, and
defendant and the codefendant matched the general description of the
suspects provided by the victim. Based on those observations, the
police had reasonable suspicion to detain defendant for investigatory
purposes, including a prompt showup identification procedure (see
People v Roque, 99 NY2d 50, 54; People v Gonzalez, 91 NY2d 909, 910;
see generally People v Hicks, 68 NY2d 234, 238-242).

     Although defendant did not request a Wade hearing, he
nevertheless contends on appeal that the showup identification
procedure was unduly suggestive. Even assuming, arguendo, that this
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                                                         KA 10-02194

issue is properly before us, inasmuch as the court addressed the
legality of the showup identification procedure in its decision, we
reject defendant’s contention. The showup identification procedure
was not rendered unduly suggestive based on the fact that defendant
was in handcuffs and in the presence of a uniformed police officer
(see People v Santiago, 83 AD3d 1471, 1471, lv denied 17 NY3d 800;
People v Davis, 48 AD3d 1120, 1122, lv denied 10 NY3d 957), and there
is no evidence in the record that the police otherwise suggested to
the victim that either suspect was involved in the robbery.

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




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