People v Marte

People v Marte 2013 NY Slip Op 00996 Decided on February 14, 2013 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 February 14, 2013
Mazzarelli, J.P., Friedman, Manzanet-Daniels, Román, Clark, JJ.
9237 1887/10

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

v

Jose Marte, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York (Jan
Hoth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L.
Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Thomas Farber, J. at suppression motion; Analisa Torres, J. at jury trial and sentencing), rendered January 3, 2011, convicting defendant of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of five years, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony, without granting a hearing pursuant to People v Rodriguez (79 NY2d 445 [1992]). Defendant did not dispute the People's contention that defendant was sufficiently known to the victim so as to render the photo identification merely confirmatory, and there was no factual issue requiring a hearing (see e.g. People v Rodriguez, 47 AD3d 417 [2008], lv denied 10 NY3d 816 [2008]; People v Murray, 247 AD2d 292 [1st Dept 1998], lv denied 92 NY2d 857 [1998]).

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations.

The court properly exercised its discretion in admitting evidence that the victim experienced difficulty sleeping following the incident, and that he began seeing a psychiatrist. This evidence was relevant to prove that the victim was brutally beaten during the robbery, especially where a defense witness described the incident as a brief fistfight not resulting in injuries.

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

ENTERED: FEBRUARY 14, 2013

CLERK