| People v Davis |
| 2021 NY Slip Op 05419 |
| Decided on October 8, 2021 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 8, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
693 KA 13-01131
v
TOMMY DAVIS, DEFENDANT-APPELLANT.
BRUCE R. BRYAN, MANLIUS, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered July 18, 2012. The judgment convicted defendant upon a jury verdict of murder in the second degree, endangering the welfare of a child, criminal possession of a weapon in the second degree and attempted murder 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, inter alia, murder in the second degree (Penal Law § 125.25 [1]) and attempted murder in the second degree (§§ 110.00, 125.25 [1]). Contrary to defendant's contention, his conviction on the murder and attempted murder counts is supported by legally sufficient evidence (see People v Rouse, 34 NY3d 269, 274-275 [2019]; People v Alligood, 192 AD3d 1508, 1508-1509 [4th Dept 2021], lv denied 37 NY3d 970 [2021]; cf. CPL 300.40). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's contentions, County Court properly refused to suppress identification testimony by the teenage eyewitnesses (see People v Marte, 12 NY3d 583, 586-589 [2009], cert denied 559 US 941 [2010]; see also People v Jackson, 90 AD3d 519, 519 [1st Dept 2011], lv denied 19 NY3d 997 [2012]; People v Elliot, 283 AD2d 183, 183-184 [1st Dept 2001], lv denied 96 NY2d 901 [2001]). Moreover, given the absence of any "substantial issues as to the constitutionality of the [subject identification procedures]," the court properly denied defendant's request to call those teenagers to testify at the suppression hearing (People v Chipp, 75 NY2d 327, 338 [1990], cert denied 498 US 833 [1990]). Indeed, defendant sought to call those teenagers at the suppression hearing only to demonstrate suggestiveness arising from the actions of private citizens, which is not a cognizable basis for suppressing identification testimony on due process grounds (see Marte, 12 NY3d at 586-589).
Contrary to defendant's further contentions, the court's Sandoval ruling was not an abuse of discretion (see People v Cotton, 184 AD3d 1145, 1146-1147 [4th Dept 2020], lv denied 35 NY3d 1112 [2020]), and the imposition of consecutive terms of imprisonment on the murder and attempted murder counts was not illegal (see People v McKnight, 16 NY3d 43, 47-50 [2010]; People v Smith, 171 AD3d 1102, 1105-1106 [2d Dept 2019], lv denied 33 NY3d 1073 [2019]). Defendant's remaining contentions do not warrant reversal or modification of the judgment.
Entered: October 8, 2021
Ann Dillon Flynn
Clerk of the Court