SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

392 

KA 04-01470 

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ALONZO WOODARD, JR., DEFENDANT-APPELLANT. 

 

KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KELLEY PROVO OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Stephen R. Sirkin, A.J.), rendered April 15, 2004. The judgment

convicted defendant, upon a jury verdict, of burglary in the first

degree (two counts), assault in the second degree, assault in the

third degree (four counts) and unlawful imprisonment in the first

degree (two counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified as a matter of discretion in the interest of

justice by reducing the conviction of assault in the second degree to

attempted assault in the second degree and vacating the sentence

imposed on the fourth count of the indictment and as modified the

judgment is affirmed, and the matter is remitted to Supreme Court,

Monroe County, for sentencing on the conviction of attempted assault

in the second degree. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, two counts of burglary in the

first degree (Penal Law § 140.30 [2], [3]), one count of assault in

the second degree (§ 120.05 [2]), and four counts of assault in the

third degree (§ 120.00 [1]). Supreme Court properly refused to

suppress the showup identifications of defendant by the two victims. 

Although showup identification procedures are generally disfavored

(see People v Ortiz, 90 NY2d 533, 537), such procedures are permitted

“where [they are] reasonable under the circumstances--that is, when

conducted in close geographic and temporal proximity to the crime--and

the procedure used was not unduly suggestive” (People v Brisco, 99

NY2d 596, 597; see Ortiz, 90 NY2d at 537; People v Jackson, 78 AD3d

1685, lv denied 16 NY3d 743). Here, the showup identification

procedure took place at the scene of the crime, within 90 minutes of

the commission of the crime and in the course of a continuous, ongoing

investigation (see Brisco, 99 NY2d at 597; see People v Wall, 38 AD3d
-2- 392 

KA 04-01470 

1341, lv denied 9 NY3d 852; People v Boyd, 272 AD2d 898, lv denied 95

NY2d 850). Inasmuch as the two victims were placed in different

police vehicles and remained apart throughout the showup

identification procedure, “it cannot be said that the [victims] were

in such proximity while viewing [defendant] that there was an

increased likelihood that if one of them made an identification the

other[] would concur” (People v Pross, 302 AD2d 895, 896, lv denied 99

NY2d 657 [internal quotation marks omitted]; see also People v McGee,

294 AD2d 937, lv denied 98 NY2d 699). We further note that the People

presented testimony at the Wade hearing that, prior to the showup

identification procedure, one of the victims spontaneously identified

defendant as one of the perpetrators. Thus, the court properly

refused to suppress the showup identification of that victim on the

additional ground that the showup identification procedure was merely

confirmatory (see People v Buskey, 13 AD3d 1058; People v Burroughs,

11 AD3d 1028, lv denied 3 NY3d 755; People v Santiago, 2 AD3d 263, lv

denied 2 NY3d 765).

Defendant’s challenges to the legal sufficiency of the evidence

are not preserved for our review inasmuch as he failed to renew his

motion for a trial order of dismissal after presenting evidence (see

People v Lane, 7 NY3d 888, 889; People v DeLee, 79 AD3d 1664; People v

Baker, 67 AD3d 1446, lv denied 14 NY3d 769). Nevertheless, we agree

with defendant that the evidence of physical injury is legally

insufficient to support his conviction of assault in the second

degree, and we therefore exercise our power to review that contention

as a matter of discretion in the interest of justice (see CPL 470.15

[6] [a]). Although the victim testified that defendant and the

codefendants attempted to electrocute him by dousing him with water

and then touching the frayed end of an electrical cord to his skin

multiple times, the victim further testified that he felt only a

“little shock.” Thus, as the People correctly concede, they failed to

present evidence establishing either physical impairment or

substantial pain (see Penal Law § 10.00 [9]; People v Lewis, 294 AD2d

847). We reject defendant’s further contention, however, that the

electrical cord did not constitute a “ ‘[d]angerous instrument’ ” (§

10.00 [13]). Under the circumstances in which it was used, the

electrical cord was “readily capable of causing death or other serious

physical injury” (id.; see generally People v Still, 26 AD3d 816, 817,

lv denied 6 NY3d 853; People v Molnar, 234 AD2d 988, lv denied 89 NY2d

1038; People v Wade, 232 AD2d 290, lv denied 89 NY2d 989). We

therefore modify the judgment by reducing defendant’s conviction of

assault in the second degree to the lesser included offense of

attempted assault in the second degree (§§ 110.00, 120.05 [2]; see CPL

470.15 [2] [a]), and we remit the matter to Supreme Court for

sentencing on the fourth count of the indictment. Viewing the

evidence in light of the elements of the crime of burglary in the

first degree as charged to the jury (see People v Danielson, 9 NY3d

342, 349), we reject defendant’s contention that the verdict with

respect to the counts of the indictment charging that crime is against

the weight of the evidence (see generally People v Bleakley, 69 NY2d

490, 495).
-3- 392 

KA 04-01470 

Defendant’s constitutional challenge to the persistent felony

offender statute is not properly before us inasmuch as there is no

indication in the record that the Attorney General was given the

requisite notice of that challenge (see Executive Law § 71 [3]; People

v Schaurer, 32 AD3d 1241). In any event, that contention is not

preserved for our review (see People v Perez, 67 AD3d 1324, 1326, lv

denied 13 NY3d 941; People v Phillips, 56 AD3d 1168, lv denied 11 NY3d

928), and it is without merit (see People v Porto, 16 NY3d 93, 102;

see generally People v Quinones, 12 NY3d 116, 122-131, cert denied ___

US ___, 130 S Ct 104; People v Rivera, 5 NY3d 61, 66-68, cert denied

546 US 984). 

Entered: April 1, 2011 Patricia L. Morgan

Clerk of the Court