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

1159
KA 12-01728
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIE CARSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered July 23, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree,
attempted robbery in the first degree and attempted 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 burglary in the first degree (Penal Law §
140.30 [4]), attempted robbery in the first degree (§§ 110.00, 160.15
[4]) and attempted robbery in the second degree (§§ 110.00, 160.10
[1]). Contrary to defendant’s contention, County Court properly
refused to suppress a witness’s in-court identification of him. It is
well settled that, “even when an identification is the product of a
suggestive pretrial identification procedure, a witness will
nonetheless be permitted to identify a defendant in court if that
identification is based upon an independent source” (People v
Campbell, 200 AD2d 624, 625, lv denied 83 NY2d 869; see People v
Wilson, 43 AD3d 1409, 1410, lv denied 9 NY3d 994). Here, after
conducting a hearing and reviewing the appropriate factors (see Neil v
Biggers, 409 US 188, 199-200; People v Lopez, 85 AD3d 1641, 1641, lv
denied 17 NY3d 860), the court properly concluded that the People
established by clear and convincing evidence that the victim’s
observations of defendant during the commission of the crime provided
an independent basis for the in-court identification (see People v
Young, 20 AD3d 893, 893-894, affd 7 NY3d 40; People v Small, 110 AD3d
1106, 1106-1107, lv denied 22 NY3d 1043; People v Jordan, 96 AD3d 640,
640, lv denied 19 NY3d 1027).

     Defendant further contends that the police lieutenant who stopped
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                                                         KA 12-01728

him lacked probable cause to arrest him or reasonable suspicion to
detain him, and that the court therefore erred in refusing to suppress
all evidence flowing from that detention. We reject that contention.
It is well settled that a police officer has reasonable suspicion to
detain a suspect and transport him or her to the scene of a crime
where the stop occurs close in time and location to the crime (see
People v Brisco, 99 NY2d 596, 600; People v Hicks, 68 NY2d 234, 239-
240). Here, the evidence at the hearing establishes that the
lieutenant saw defendant running across a street three blocks from the
scene of the crime, in the same direction in which the broadcast
indicated that the suspects were fleeing. The lieutenant testified
that, at the time when she first saw defendant running, the broadcast
indicated that a crime was in progress, and defendant’s description,
i.e., a black male wearing blue jeans, was consistent with the
broadcast description of the suspects. Contrary to defendant’s
contention, the slight variance between the T-shirt he was wearing at
the time of the stop and the hooded sweatshirt that, according to the
broadcast, the suspect was wearing does not require suppression
inasmuch as the stop was in temporal and spatial proximity to the
broadcast and the majority of the identifying factors were present
(see People v Richardson, 70 AD3d 1327, 1328, lv denied 15 NY3d 756;
see also People v Balkum, 71 AD3d 1594, 1595-1596, lv denied 14 NY3d
885). Furthermore, the lieutenant was aware that the suspects had
been running through back yards in an attempt to escape from the
pursuing officers and civilians, and it is not remarkable that a
fleeing suspect would discard his outer clothing in an attempt to
avoid pursuit (see e.g. People v Foster, 85 NY2d 1012, 1013; People ex
rel. Gonzalez v Warden of Anna M. Cross Ctr., 79 NY2d 892, 894; People
v McCullin, 248 AD2d 277, 277-278, lv denied 92 NY2d 928). Finally,
the lieutenant “had probable cause to arrest defendant after the
victim identified him during the showup identification procedure”
(People v Dumbleton, 67 AD3d 1451, 1452, lv denied 14 NY3d 770; see
People v Samuels, 113 AD3d 1117, 1118, lv denied 24 NY3d 964; People v
Jackson, 78 AD3d 1685, 1686, lv denied 16 NY3d 743).

     Defendant also contends that his conviction is not supported by
legally sufficient evidence because the evidence fails to establish
that he was one of the perpetrators of the crimes. Viewing the
evidence in the light most favorable to the People (see People v
Williams, 84 NY2d 925, 926), we conclude that it is legally sufficient
to establish defendant’s identity, and thus to support the conviction
of the crimes charged (see generally People v Bleakley, 69 NY2d 490,
495). 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
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). Although
defendant contends that the victims and the codefendant who testified
against him were not credible, we note that “[r]esolution of issues of
credibility, as well as the weight to be accorded to the evidence
presented, are primarily questions to be determined by the jury”
(People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and we see no reason to disturb
the jury’s resolution of those issues.
                                 -3-                             1159
                                                            KA 12-01728

     Defendant further contends that he was deprived of due process by
prosecutorial misconduct during summation. Defendant objected to six
instances of alleged misconduct during the prosecutor’s summation, and
the court sustained those objections. The court also gave curative
instructions on two occasions. Defendant raises issues on appeal with
respect to, inter alia, five of those alleged instances of misconduct
to which he objected. “Following the Trial Judge’s curative
instructions, defense counsel neither objected further, nor requested
a mistrial. Under these circumstances, the curative instructions must
be deemed to have corrected the error[s] to the defendant’s
satisfaction” (People v Heide, 84 NY2d 943, 944; see People v Medina,
53 NY2d 951, 953; People v Wallace, 59 AD3d 1069, 1071, lv denied 12
NY3d 861). Defendant did not object to the remaining instances of
alleged misconduct during summation that he now challenges on appeal,
and thus failed to preserve his current contentions for our review
(see People v James, 114 AD3d 1202, 1206-1207, lv denied 22 NY3d 1199;
People v Rumph, 93 AD3d 1346, 1347, lv denied 19 NY3d 967). We
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Contrary to defendant’s further contention, the court properly
denied his motion pursuant to CPL 330.30 (2) to set aside the verdict
based on alleged juror misconduct. Pursuant to that statute, the
court is authorized to set aside a verdict if, “during the trial there
occurred, out of the presence of the court, improper conduct by a
juror, or improper conduct by another person in relation to a juror,
which may have affected a substantial right of the defendant and which
was not known to the defendant prior to the rendition of the verdict”
(id.). At a hearing on such a motion, “the defendant has the burden
of proving by a preponderance of the evidence every fact essential to
support the motion” (CPL 330.40 [2] [g]). Here, defendant failed to
establish that there was improper conduct by the juror at issue
inasmuch as he failed to establish by a preponderance of the evidence
that the juror knew before or during the trial that one of defendant’s
trial attorneys represented the opposing party in the juror’s Family
Court proceeding. Defendant thus failed to demonstrate that there was
misconduct by a juror that “may have affected a substantial right of
the defendant” (CPL 330.30 [2]; see People v Richardson, 185 AD2d
1001, 1002, lv denied 80 NY2d 976; cf. People v Brown, 48 NY2d 388,
393-394).

     The sentence is not unduly harsh or severe.




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