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

862
KA 07-01622
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEMERUS GILMER, DEFENDANT-APPELLANT.


THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered May 11, 2007. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of robbery in the first degree (Penal Law § 160.15
[4]). We agree with defendant that Supreme Court erred in summarily
denying his request for a Wade hearing with respect to a witness’s
identification of defendant. Defendant submitted an “Affirmation in
support of [Wade] Hearing” in which he sought to suppress the
identification in question on the ground that the photo array
identification procedure was unduly suggestive. The court concluded
that defendant failed to comply with CPL 710.60 (1), pursuant to which
a motion to suppress must include sworn allegations of fact supporting
the grounds of the motion. Such sworn allegations of fact, however,
are not required when the motion seeks to suppress an identification
of the defendant on the ground of an improper pretrial identification
procedure (see CPL 710.20 [6]; 710.60 [3] [b]; People v Mendoza, 82
NY2d 415, 429; People v Rodriguez, 79 NY2d 445, 453). Here,
“defendant simply does not know the facts surrounding [the photo
array] pretrial identification procedure[],” and thus he is unable to
make sworn allegations of fact to support the motion (Mendoza, 82 NY2d
at 429).

     We agree with the People, however, that the error is harmless
(see generally People v Crimmins, 36 NY2d 230, 237). Although the
witness at issue testified at trial, she did not identify defendant as
the perpetrator of the robbery, nor did she testify regarding any
                                 -2-                           862
                                                         KA 07-01622

police-arranged identification procedure (see Matter of William J.,
203 AD2d 144; see also People v Livingston, 186 AD2d 1076, lv denied
81 NY2d 791; People v Epps, 155 AD2d 933, lv denied 75 NY2d 868).

     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).
The testimony of the only eyewitness who identified defendant in court
as the perpetrator was corroborated by the testimony of the other
eyewitnesses, who provided almost identical descriptions of the
perpetrator and the events surrounding the robbery. Although a
different result would not have been unreasonable, we accord deference
to the credibility determinations of the jury, which had the
opportunity to hear the witnesses and assess their credibility, and it
cannot be said that the jury failed to give the evidence the weight it
should be accorded (see generally id.; People v Baker, 30 AD3d 1102,
lv denied 7 NY3d 846).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
