State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 105930 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

SHATEEK LANIER,

Appellant.

________________________________

Calendar Date: June 5, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Theresa M. Suozzi, Saratoga Springs, for appellant.

Joel E. Abelove, District Attorney, Troy (Vincent J.

O'Neill of counsel), for respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the County Court of Rensselaer

County (Ceresia, J.), rendered April 4, 2013, upon a verdict

convicting defendant of the crimes of attempted murder in the

second degree, attempted assault in the first degree, criminal

use of a firearm in the first degree and criminal possession of a

weapon in the second degree (two counts).

Defendant was indicted for the crimes of attempted murder

in the second degree, assault in the first degree, criminal use

of a firearm in the first degree and criminal possession of a

weapon in the second degree (two counts) in connection with a

shooting that occurred in the City of Troy, Rensselaer County in

May 2012. Prior to trial, the People moved to amend count 2 of

the indictment to charge defendant with attempted assault in the
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first degree instead of assault in the first degree, which motion

County Court granted. Following a jury trial, defendant was

convicted as charged and subsequently sentenced to an aggregate

prison term of 20 years, with five years of postrelease

supervision. Defendant now appeals.

Defendant's convictions for attempted murder in the second

degree and attempted assault in the first degree were neither

based on insufficient evidence nor against the weight of the

evidence. In order for defendant to be found guilty of attempted

murder in the first degree, the People were required to prove

that, "[w]ith intent to cause the death of another person,"

defendant attempted to cause the death of such person (Penal Law

§§ 110.00, 125.25 [1]). As to the charge of attempted assault in

the first degree, the People were required to prove that, "[w]ith

intent to cause serious physical injury to another person,"

defendant attempted to cause "such injury to such person or to a

third person by means of a deadly weapon or a dangerous

instrument" (Penal Law §§ 110.00, 120.10 [1]).

As is relevant to these inquiries, two eyewitnesses

testified that they observed the shooting and further identified

defendant as the person who fired a handgun at the victim. 

Various evidence established that a total of eight shots were

fired at the victim, three of which struck him. This evidence

was legally sufficient for defendant's convictions of attempted

murder in the first degree and attempted assault in the first

degree (see People v Andrews, 127 AD3d 1417, 1420 [2015], lv

denied ___ NY3d ___ [June 19, 2015]; People v Stewart, 68 AD3d

1438, 1439 [2009], lv denied 14 NY3d 773 [2010]). Although

defendant argues that the testimony of the eyewitnesses who

identified him as the shooter should be discredited for various

reasons – including lighting conditions, the witnesses' alleged

motivations to fabricate the identification and certain

discrepancies between their testimony and their prior statements

– the jury was able to consider each of these issues now raised

and chose to credit the identification of defendant as the

shooter. Given the jury's unique opportunity to "view the

witnesses, hear the testimony and observe demeanor" (People v

Romero, 7 NY3d 633, 644 [2006] [internal quotation marks and

citation omitted]), we defer to their credibility determination
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and conclude that defendant's convictions were not against the

weight of the evidence (see People v Stewart, 68 AD3d at 1439

[2009]). 

County Court did not err in denying defendant's motion to

dismiss the indictment due to the People's alleged failure to

provide defendant with adequate notice of grand jury proceedings.

The People are required to notify a defendant of a pending grand

jury proceeding when, as is the case here, a defendant has been

arraigned on a "currently undisposed felony complaint" (CPL

190.50 [5] [a]). Such notice must afford "the defendant a

reasonable time to exercise his [or her] right to appear as a

witness" (CPL 190.50 [5] [a]; see People v Smith, 87 NY2d 715,

720 [1996]).

The uncontested facts establish that the Rensselaer County

Public Defender's office initially represented defendant, and the

People notified that office on June 4, 2012 that grand jury

presentment would begin the following day. Shortly thereafter,

the Public Defender's office requested that new counsel be

assigned to defendant due to a conflict of interest, and notice

of such fact was provided to the People. This transition in

representation apparently led to a delay in the aforementioned

information being provided to defendant, and defendant was

informed on June 5, 2012, by his new counsel, that grand jury

presentment was currently ongoing. At approximately 2:00 p.m.

that same day, defendant was provided with further notice from

the People that grand jury presentment would also take place on

June 7, 2012, beginning at 9:30 a.m. Defendant received that

information either shortly before or simultaneous to having an

opportunity to consult with counsel. 

Given that CPL 190.50 (5) (a) expressly contemplates that

the People may provide a defendant notice that a grand jury

presentment is "in progress," defendant had no specific right to

adequate notice in relationship to the commencement of such

presentment. Rather, the appropriate time line against which to

assess defendant's notice is the latest opportunity that he could

have exercised his right to appear as a witness (see generally

People v Bass, 255 AD2d 689, 692 [1998], lv denied 93 NY2d 966

[1999]). Further, contrary to defendant's contention, he was not
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entitled to receive discovery materials prior to the grand jury

presentment so as to make a more informed decision as to whether

to provide testimony (see People v Sawyer, 96 NY2d 815, 817

[2001]). Given that defendant had approximately two days notice

before the final day of grand jury presentment and also had an

opportunity to consult with counsel, County Court did not err in

denying defendant's motion to dismiss the indictment on this

ground (see id. at 817).

County Court did not err in denying defendant's motion to

suppress the pretrial identifications. "[A] pretrial

identification that is unduly suggestive violates due process and

is therefore inadmissible against the defendant" (People v Smith,

122 AD3d 1162, 1162 [2014]; see People v Chipp, 75 NY2d 327, 335

[1990], cert denied 498 US 833 [1990]). Accordingly, the

relevant characteristics of the individuals included in a

photograph array must be sufficiently similar so as to not

"create a substantial likelihood that the defendant would be

singled out for identification" (People v Chipp, 75 NY2d at 336;

see People v Matthews, 101 AD3d 1363, 1364 [2012], lvs denied 20

NY3d 1101, 1104 [2013]; People v McDonald, 306 AD2d 696, 697

[2003]). The People have the initial burden of establishing that

the police acted reasonably and that the pretrial identification

procedures were not unduly suggestive; however, it is the

defendant who must ultimately prove that the procedure was unduly

suggestive (see People v Chipp, 75 NY2d at 335; People v Smith,

122 AD3d at 1162). 

Defendant limits his argument to the contention that the

two photo arrays1 respectively shown to the two witnesses who

thereafter identified defendant's picture were unduly suggestive,

because only defendant's photograph presented the combination of

age, size and clothing that fit the characteristics previously

attributed to the shooter. Our review of the arrays reveals that

multiple photographs depicted men wearing hoodies, the same

garment the shooter had been reported as wearing. Further, we

discern no significant dissimilarity as to the ages of the men

1 Each of the two arrays contains the same photographs,

although in a different order.
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depicted, and the photographs are cropped in a manner that

renders height comparisons speculative. Accordingly, because the

arrays do not create a substantial likelihood that defendant

would be picked out, County Court properly denied defendant's

motion to suppress the pretrial identifications (see People v

Matthews, 101 AD3d at 1364; People v Coleman, 2 AD3d 1045, 1046

[2003]; People v McDonald, 306 AD2d at 697). 

County Court did not abuse its discretion in regard to its

Sandoval ruling. Possession of burglar's tools is a conviction

involving theft (see People v Vetrano, 88 AD3d 750, 750-751

[2011]) and such a conviction is "particularly probative of

credibility" (People v Fomby, 101 AD3d 1355, 1357 [2012]; see

People v Lemke, 58 AD3d 1078, 1078-1079 [2009]), and not one

particularly similar to the charges here. Accordingly, County

Court did not abuse its discretion in permitting crossexamination as to the fact that defendant had such a conviction,

but not as to underlying facts or the attendant sentencing (see

People v Fomby, 101 AD3d at 1356-1357; People v Vetrano, 88 AD3d

750-741).

Finally, defendant's sentence was neither harsh nor

excessive. Defendant shot the victim three times and continued

to fire at him as the victim attempted to flee. Further, the

particular commission of these crimes included defendant

endangering the lives of those community members who were near

the scene of the shooting. Given these facts, we do not perceive

any abuse of discretion or extraordinary circumstances that would

warrant modification of defendant's sentence (see People v

Rabideau, 82 AD3d 1283, 1287 [2011], lv denied 17 NY3d 799

[2011]; People v Lozada, 35 AD3d 969, 971 [2006], lv denied 8

NY3d 947 [2007]; People v Arnold, 32 AD3d 1051, 1051 [2006]).

Egan Jr., Lynch and Devine, JJ., concur.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court