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

392
KA 04-01470
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALONZO WOODARD, JR., DEFENDANT-APPELLANT.


KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KELLEY PROVO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered April 15, 2004. The judgment
convicted defendant, upon a jury verdict, of burglary in the first
degree (two counts), assault in the second degree, assault in the
third degree (four counts) and unlawful imprisonment in the first
degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the conviction of assault in the second degree to
attempted assault in the second degree and vacating the sentence
imposed on the fourth count of the indictment and as modified the
judgment is affirmed, and the matter is remitted to Supreme Court,
Monroe County, for sentencing on the conviction of attempted assault
in the second degree.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts of burglary in the
first degree (Penal Law § 140.30 [2], [3]), one count of assault in
the second degree (§ 120.05 [2]), and four counts of assault in the
third degree (§ 120.00 [1]). Supreme Court properly refused to
suppress the showup identifications of defendant by the two victims.
Although showup identification procedures are generally disfavored
(see People v Ortiz, 90 NY2d 533, 537), such procedures are permitted
“where [they are] reasonable under the circumstances--that is, when
conducted in close geographic and temporal proximity to the crime--and
the procedure used was not unduly suggestive” (People v Brisco, 99
NY2d 596, 597; see Ortiz, 90 NY2d at 537; People v Jackson, 78 AD3d
1685, lv denied 16 NY3d 743). Here, the showup identification
procedure took place at the scene of the crime, within 90 minutes of
the commission of the crime and in the course of a continuous, ongoing
investigation (see Brisco, 99 NY2d at 597; see People v Wall, 38 AD3d
                                 -2-                           392
                                                         KA 04-01470

1341, lv denied 9 NY3d 852; People v Boyd, 272 AD2d 898, lv denied 95
NY2d 850). Inasmuch as the two victims were placed in different
police vehicles and remained apart throughout the showup
identification procedure, “it cannot be said that the [victims] 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 Pross, 302 AD2d 895, 896, lv denied 99
NY2d 657 [internal quotation marks omitted]; see also People v McGee,
294 AD2d 937, lv denied 98 NY2d 699). We further note that the People
presented testimony at the Wade hearing that, prior to the showup
identification procedure, one of the victims spontaneously identified
defendant as one of the perpetrators. Thus, the court properly
refused to suppress the showup identification of that victim on the
additional ground that the showup identification procedure was merely
confirmatory (see People v Buskey, 13 AD3d 1058; People v Burroughs,
11 AD3d 1028, lv denied 3 NY3d 755; People v Santiago, 2 AD3d 263, lv
denied 2 NY3d 765).

     Defendant’s challenges to the legal sufficiency of the evidence
are not preserved for our review inasmuch as he failed to renew his
motion for a trial order of dismissal after presenting evidence (see
People v Lane, 7 NY3d 888, 889; People v DeLee, 79 AD3d 1664; People v
Baker, 67 AD3d 1446, lv denied 14 NY3d 769). Nevertheless, we agree
with defendant that the evidence of physical injury is legally
insufficient to support his conviction of assault in the second
degree, and we therefore exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). Although the victim testified that defendant and the
codefendants attempted to electrocute him by dousing him with water
and then touching the frayed end of an electrical cord to his skin
multiple times, the victim further testified that he felt only a
“little shock.” Thus, as the People correctly concede, they failed to
present evidence establishing either physical impairment or
substantial pain (see Penal Law § 10.00 [9]; People v Lewis, 294 AD2d
847). We reject defendant’s further contention, however, that the
electrical cord did not constitute a “ ‘[d]angerous instrument’ ” (§
10.00 [13]). Under the circumstances in which it was used, the
electrical cord was “readily capable of causing death or other serious
physical injury” (id.; see generally People v Still, 26 AD3d 816, 817,
lv denied 6 NY3d 853; People v Molnar, 234 AD2d 988, lv denied 89 NY2d
1038; People v Wade, 232 AD2d 290, lv denied 89 NY2d 989). We
therefore modify the judgment by reducing defendant’s conviction of
assault in the second degree to the lesser included offense of
attempted assault in the second degree (§§ 110.00, 120.05 [2]; see CPL
470.15 [2] [a]), and we remit the matter to Supreme Court for
sentencing on the fourth count of the indictment. Viewing the
evidence in light of the elements of the crime of burglary in the
first degree as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s contention that the verdict with
respect to the counts of the indictment charging that crime is against
the weight of the evidence (see generally People v Bleakley, 69 NY2d
490, 495).
                                 -3-                           392
                                                         KA 04-01470

     Defendant’s constitutional challenge to the persistent felony
offender statute is not properly before us inasmuch as there is no
indication in the record that the Attorney General was given the
requisite notice of that challenge (see Executive Law § 71 [3]; People
v Schaurer, 32 AD3d 1241). In any event, that contention is not
preserved for our review (see People v Perez, 67 AD3d 1324, 1326, lv
denied 13 NY3d 941; People v Phillips, 56 AD3d 1168, lv denied 11 NY3d
928), and it is without merit (see People v Porto, 16 NY3d 93, 102;
see generally People v Quinones, 12 NY3d 116, 122-131, cert denied ___
US ___, 130 S Ct 104; People v Rivera, 5 NY3d 61, 66-68, cert denied
546 US 984).




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
