                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 7, 2016                       106956
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

SALAM AL HAIDERI,
                    Appellant.
________________________________


Calendar Date:   May 24, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

                              __________


     Carolyn B. George, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                              __________


McCarthy, J.

      Appeal from a judgment of the Supreme Court (McDonough,
J.), rendered May 16, 2014 in Albany County, upon a verdict
convicting defendant of the crimes of predatory sexual assault
and rape in the first degree.

      At about 2:00 a.m. on June 2, 2014, the teenage victim left
a bar in the City of Albany after becoming separated from her
friends and accepted a ride from defendant and his friend, who
were strangers to her. They left in a car driven by the friend.
During the ride, defendant and the victim sat in the back seat
and, after the victim resisted defendant's advances, they began
to argue. The driver stopped the vehicle and ordered defendant
out, and defendant then dragged the victim out of the car and the
driver drove away, leaving them at a roadside curb. The victim
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recounted that defendant then forced her behind dumpsters at an
adjacent business, where he ordered her on to her knees, grabbed
her head and repeatedly slammed it against the cement or concrete
parking lot surface and then forcibly raped her. The victim,
covered in blood, fled to a nearby gas station where police were
summoned, and she was subsequently hospitalized for her injuries.
She later identified defendant from a photo array, and a forensic
examination of the victim's clothing and samples of evidence from
the rape kit yielded a match to samples of defendant's DNA.
Following a jury trial, defendant was convicted of predatory
sexual assault and rape in the first degree as charged in an
indictment and sentenced to concurrent prison terms of 22 years
to life for the predatory sexual assault conviction and 22 years
with 20 years of postrelease supervision for the rape in the
first degree conviction. Defendant appeals.

      Initially, Supreme Court did not err in denying defendant's
motion to suppress the victim's pretrial identification of him
from a police-arranged photo array, rejecting defendant's claim
that it was unduly suggestive. "[A] photo array is unduly
suggestive if it depicts a unique characteristic which draws the
viewer's attention so as to indicate that the police have
selected a particular individual" (People v Smith, 122 AD3d 1162,
1163 [2014] [internal quotation marks and citation omitted]).
While "[t]he People have the initial burden of establishing that
the police acted reasonably and that the pretrial identification
procedures were not unduly suggestive[,] . . . it is the
defendant who must ultimately prove that the procedure was unduly
suggestive" (People v Lanier, 130 AD3d 1310, 1312-1313 [2015], lv
denied 26 NY3d 1009 [2015]). Defendant's specific claim is that
the other men in the photo array were Caucasian while he is of
Middle-Eastern descent with darker skin tone. Our review of the
photo array reveals six men who appear to be of similar ages, all
with dark hair and varying skins tones, several very similar to
defendant's skin tone. We agree with Supreme Court's finding
that the characteristics of the men in the photographs, including
their skin tone, were sufficiently similar and did not create a
"substantial likelihood" that defendant would be singled out for
identification by the victim (People v Chipp, 75 NY2d 327, 336
[1990], cert denied 498 US 833 [1990]; see People v Lanier, 130
AD3d at 1312; People v Matthews, 101 AD3d 1363, 1364 [2012], lvs
                              -3-                106956

denied 20 NY3d 1101, 1104 [2013]; People v Yousef, 8 AD3d 820,
821 [2004], lv denied 3 NY3d 743 [2004]).

      With regard to defendant's related claim that the victim
initially identified an individual other than defendant as the
assailant, the record belies this claim. Testimony at the Wade
hearing established that when a police investigator showed the
photo array to the victim at the hospital, she "immediately"
pointed to defendant's picture and twice identified him as the
person who had sexually assaulted her; she then circled
defendant's picture and placed her initials above it. When asked
for the number of the photograph, the victim stated photo No. 5,
which was the number below defendant's photograph, rather than
the correct number associated with defendant's photograph, No. 2,
which appeared above defendant's photograph.1 Notwithstanding
this ministerial error, the testimony established both the
reasonableness of the police conduct and the lack of any undue
suggestiveness or error in the identification procedure (see
People v Chipp, 75 NY2d at 335). Accordingly, defendant's motion
to suppress the pretrial identification was properly denied.

      Contrary to defendant's contention, his conviction of
predatory sexual assault is supported by legally sufficient
evidence. To establish this crime, the People were required to
prove, as relevant here, that defendant committed the crime of
rape in the first degree and, in the course of that crime or
immediate flight therefrom, he "use[d] or threaten[ed] the
immediate use of a dangerous instrument" (Penal Law § 130.95 [1]
[b]). Defendant's sole argument on this point is that the proof


    1
        The photo array consists of two rows, each with three
pictures. Defendant's photograph appeared as the second picture
in the top row, which had a No. 2 above it. The middle
photograph in the bottom row – beneath defendant's picture – had
a No. 5 above it. When the victim circled defendant's picture,
she circled both the No. 2 above it and the No. 5 below it, but
there is no question that she identified defendant and circled
his picture. Although the police investigator recorded that the
victim had identified photo No. 5, the form was later corrected
in the victim's presence.
                              -4-                106956

did not establish that he used a dangerous instrument, which is
defined as "any instrument, article or substance . . . which,
under the circumstances in which it is used, attempted to be used
or threatened to be used, is readily capable of causing death or
other serious physical injury" (Penal Law § 10.00 [13]; see
People v Carter, 53 NY2d 113, 116 [1981]; People v Hill, 130 AD3d
1305, 1305-1306 [2015], lv denied 27 NY3d 999 [2015]; People v
Taylor, 118 AD3d 1044, 1045 [2014], lv denied 23 NY3d 1043
[2014]). To qualify as a dangerous instrument, the object need
not be inherently dangerous but, rather, it must have been "used
in a manner which render[ed] it readily capable of causing
serious physical injury" (People v Carter, 53 NY2d at 116
[emphasis omitted]; see People v McElroy, 139 AD3d 980, 981
[2016]; People v Ray, 273 AD2d 611, 613 [2000]). Concrete and
cement surfaces and sidewalks have been held to constitute a
dangerous instruments when used in such a manner (see People v
Galvin, 65 NY2d 761, 762 [1985]; People v McElroy, 139 AD3d at
981; see also People v Warren, 98 AD3d 634, 636 [2012]; People v
Melville, 298 AD2d 601, 601-602 [2002], lv denied 99 NY2d 617
[2003]). Viewing the evidence in the light most favorable to the
People, as we must when considering a challenge to the legal
sufficiency of trial evidence (see People v Ramos, 19 NY3d 133,
136 [2012]), we find that, by repeatedly and forcefully smashing
the victim's face into the concrete or cement surface, defendant
used that surface in a manner readily capable of causing death or
serious injury to her. Crediting the victim's account, in
combination with the medical testimony as to her injuries, which
included trauma and fractures to her face, the evidence was
legally sufficient to support defendant's conviction of predatory
sexual assault.

      However, defendant is correct that rape in the first degree
is a lesser included offense of predatory sexual assault in that
the former is an element of the latter and defendant could not
have committed the latter without also committing the former (see
CPL 1.20 [37]; 300.30 [4]; Penal Law §§ 130.35 [1]; 130.95 [1]
[b]; People v Lee, 39 NY2d 388, 390 [1976]; People v Earl, 133
AD3d 875, 875 [2015], lv denied 26 NY3d 1144 [2016]; People v
Ortiz, 95 AD3d 1140, 1141 [2012], lv denied 19 NY3d 999 [2012]).
Since the conviction of the greater count, predatory sexual
assault, operates as a dismissal of the lesser count (see CPL
                                -5-                  106956

300.40 [3] [b]), we reverse defendant's conviction of rape in the
first degree and vacate the sentence imposed thereon (see People
v Earl, 133 AD3d at 875).2 Defendant's remaining contentions are
without merit.

        Lahtinen, J.P., Garry, Clark and Mulvey, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
reversing defendant's conviction of rape in the first degree
under count 2 of the indictment; said count dismissed and the
sentence imposed thereon vacated; and, as so modified, affirmed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    2
        Although defendant did not request that those counts be
charged "in the alternative only" (CPL 300.40 [3] [b]) or object
to the charge as given, the conviction of the lesser count must
be dismissed under CPL 300.40 (4) (b) (see People v Lee, 39 NY2d
at 390; People v Hayes, 104 AD3d 1050, 1052 [2013], lv denied 22
NY3d 1041 [2013]; People v Mitchell, 216 AD2d 863, 864 [1995], lv
denied 86 NY2d 798 [1995]).
