People v Alston

People v Alston 2012 NY Slip Op 00040 Decided on January 5, 2012 Appellate Division, First 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 January 5, 2012
Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Román, JJ. 6482-
6483 2694/06

[*1]The People of the State of New York, Respondent,

v

Donnell Alston, Defendant-Appellant.




Davis Polk & Wardwell LLP, New York (Osmar Jose
Benvenuto of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P.
Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered April 1, 2008, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, and order, same court and Justice, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The court properly denied defendant's CPL 440.10(1)(g) motion to vacate the judgment on the ground of newly discovered evidence. This evidence would not have created any reasonable possibility of changing the result, let alone the "probability" required by the statute (see e.g. People v Taylor, 246 AD2d 410 [1998], lv denied 91 NY2d 978 [1998]).

Despite minor inconsistencies in her testimony, the victim of this robbery of an antique shop made an unusually reliable identification. On the date of the robbery, the victim had three separate conversations with defendant, who was posing as a shopper. The first conversation was approximately 45 minutes long. Since each conversation made reference to the preceding conversation, there is no doubt that the victim encountered the same man each time. Moreover, defendant's fingerprints were found on a jewelry display case, and there was evidence warranting an inference that it was at least likely that these prints were left on the day of the robbery.

The newly discovered evidence consisted of potential testimony by a customer in the store at the time of the robbery. According to the customer, defendant was not the robber, and there were differences in his appearance from that of the robber. However, in contrast to the victim, the customer had a very limited opportunity to observe defendant. Accordingly, the motion court properly concluded that it was not probable that the customer's testimony would have overcome the strong evidence against defendant.

The court properly exercised its discretion in denying defendant's mistrial motion, made after a police witness gave testimony about fingerprints that the court found to be beyond the witness's competence. The court struck this testimony and gave thorough curative instructions that were sufficient to prevent any prejudice (see People v Santiago, 52 NY2d 865 [1981]), and which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]).

Defendant's remaining evidentiary claims are unpreserved and we decline to review them [*2]in the interest of justice. As an alternative holding, we find that evidence of repetitive conduct regarding the cleaning of the display case was correctly received, and that the admission of a prior consistent statement was harmless error.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 5, 2012

CLERK