SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

772 

KA 13-02138 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

VERNIEL L. WILSON, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, MULDOON, GETZ & RESTON 

(GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.

VERNIEL L. WILSON, DEFENDANT-APPELLANT PRO SE. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Douglas A.

Randall, J.), rendered November 1, 2013. The judgment convicted

defendant, upon a jury verdict, of robbery in the first degree,

robbery in the second degree and attempted robbery in the second

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of robbery in the first degree (Penal Law § 160.15 [4]),

robbery in the second degree (§ 160.10 [1]), and attempted robbery in

the second degree (§§ 110.00, 160.10 [1]), defendant contends that

County Court erred in refusing to suppress the identifications of him

by the victims on the grounds that he was unlawfully detained by the

police and that the showup procedures were unduly suggestive. We

reject that contention. “The police had reasonable suspicion to stop

and detain defendant for a showup identification based on . . . a

radio transmission providing a general description of the

perpetrator[s] of [the] crime[s, the] proximity of the defendant to

the site of the crime[s], the brief period of time between the

crime[s] and the discovery of the defendant near the location of the

crime[s], and the [officers’] observation of the defendant, who

matched the radio-transmitted description [of one of the

perpetrators]” (People v Owens, 39 AD3d 1260, 1261, lv denied 9 NY3d

849 [internal quotation marks omitted]; see People v Smith, 128 AD3d

1434, 1434, lv denied 26 NY3d 1011; People v Mitchell, 118 AD3d 1417,

1418, lv denied 24 NY3d 963; People v Evans, 34 AD3d 1301, 1302, lv

denied 8 NY3d 845). With respect to the showup procedures, we

conclude that they were not unduly suggestive. “[T]he victim[s’]
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KA 13-02138 

observation of defendant being removed from a patrol car, and the fact

that defendant was handcuffed, did not render the showup[s] unduly

suggestive as a matter of law” (Smith, 128 AD3d at 1435; see People v

Boyd, 272 AD2d 898, 899, lv denied 95 NY2d 850; People v Aponte, 222

AD2d 304, 304-305, lv denied 88 NY2d 980). 

Contrary to defendant’s contention, defense counsel was not

ineffective for failing to call a cross-racial identification expert

at trial (see White v Georgia, 293 Ga 635, 636-637; see generally

People v Jones, 85 AD3d 612, 614, affd 21 NY3d 449), especially

considering that defendant was identified both by an individual of the

same race and by an individual of a different race. Nor was counsel

ineffective in failing to timely request a missing witness charge. 

Defendant was acquitted of the charge relating to the missing witness,

and thus he suffered no prejudice from counsel’s alleged misstep in

that regard (see People v Santana, 114 AD3d 557, 558, lv denied 23

NY3d 1067; see generally People v Stultz, 2 NY3d 277, 284, rearg

denied 3 NY3d 702; People v Glanda, 18 AD3d 956, 960, lv denied 6 NY3d

754, reconsideration denied 6 NY3d 848). 

In his pro se supplemental brief, defendant contends that the

court erred in admitting testimony that violated his constitutional

right of confrontation (see Crawford v Washington, 541 US 36, 50-54). 

As defendant correctly concedes, however, that contention is not

preserved for our review, and we decline to exercise our power to

review it as a matter of discretion in the interest of justice (see

CPL 470.15 [6] [a]). We have reviewed defendant’s remaining

contentions, including the additional claim of ineffective assistance

of counsel asserted in his pro se supplemental brief, and we conclude

that they lack merit. 

Entered: November 10, 2016 Frances E. Cafarell

Clerk of the Court