People v. Rivera

201 A.D.3d 1346

158 N.Y.S.3d 705 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Flor RIVERA, Defendant-Appellant.

1057

KA 18-02423

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: January 28, 2022

THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

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 assault in the first degree ( Penal Law § 120.10 [1] ), assault in the second degree (§ 120.05 [2]), and assault in the third degree (§ 120.00 [2]). Defendant's conviction stems from a fight in which three victims sustained, inter alia, stab wounds. Defendant contends that Supreme Court erred in refusing to suppress identification testimony of one of the victims because that victim was in the hospital on pain medication at the time he was shown a photo array. That contention is unpreserved for our review because defendant did not raise it at the suppression hearing (see People v. Johnson , 194 A.D.3d 1410, 1411, 143 N.Y.S.3d 654 [4th Dept. 2021], lv denied 37 N.Y.3d 972, 150 N.Y.S.3d 702, 172 N.E.3d 814 [2021] ; see generally CPL 470.05 [2] ). In any event, his contention is without merit. We conclude that, while the effect of pain medications on the identifying witness "may be relevant with respect to the issue of the reliability of the identification, it has no bearing on the issue before the court in determining whether to suppress the identification, i.e., ‘whether the identification ... resulted from impermissibly suggestive police conduct’ " ( People v. Richardson , 72 A.D.3d 1578, 1579, 900 N.Y.S.2d 230 [4th Dept. 2010] ).

Contrary to defendant's further contention, the court properly denied his repeated severance motions, inasmuch as defendant failed to demonstrate the requisite good cause for a discretionary severance from the codefendant's trial (see CPL 200.40 [1] ; People v. Mahboubian , 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ; People v. Lundy , 178 A.D.3d 1389, 1389, 116 N.Y.S.3d 831 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 638, 639, 149 N.E.3d 399, 400 [2020]). Although defendant asserted that his defense was in irreconcilable conflict with that of the codefendant, he failed to make that showing before trial (see People v. Spencer , 181 A.D.3d 1257, 1262, 120 N.Y.S.3d 536 [4th Dept. 2020], lv denied 35 N.Y.3d 1029, 126 N.Y.S.3d 23, 149 N.E.3d 861 [2020] ; Lundy , 178 A.D.3d at 1389, 116 N.Y.S.3d 831 ; People v. Sutton , 71 A.D.3d 1396, 1397, 895 N.Y.S.2d 892 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ), and no such conflict arose during the trial (see People v. Isaac , 195 A.D.3d 1410, 1411, 145 N.Y.S.3d 443 [4th Dept. 2021], lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 419, 174 N.E.3d 359 [2021] ; see generally People v. Cardwell , 78 N.Y.2d 996, 998, 575 N.Y.S.2d 267, 580 N.E.2d 753 [1991] ).

Defendant contends that the conviction of assault in the first degree is not based on legally sufficient evidence. Defendant's contention is preserved only in part (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), but it is without merit in any event. Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that there is " ‘a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ " ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Gorton , 195 A.D.3d 1428, 1428, 150 N.Y.S.3d 427 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 421, 175 N.E.3d 446 [2021] ; People v. Jaramillo , 97 A.D.3d 1146, 1147, 947 N.Y.S.2d 876 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ; People v. Brown , 57 A.D.3d 260, 261, 869 N.Y.S.2d 410 [1st Dept. 2008] ).

Defendant's contention that the conviction of assault in the second degree is not based on legally sufficient evidence is preserved only in part (see generally Gray , 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, that contention is without merit (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Finally, defendant's contention that the conviction of assault in the third degree is not based on legally sufficient evidence is...