People v. Salgado (Anthony)

People v Salgado (2022 NY Slip Op 50925(U)) [*1] People v Salgado (Anthony) 2022 NY Slip Op 50925(U) [76 Misc 3d 134(A)] Decided on September 23, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on September 23, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2019-1109 K CR The People of the State of New York, Respondent, against Anthony Salgado, Appellant. Appellate Advocates (Chelsea Lopez of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Seth M. Lieberman, Daniel Berman and Coby Ballard of counsel), for respondent. Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Elizabeth N. Warin, J.), rendered May 30, 2019. The judgment convicted defendant, after a nonjury trial, of public lewdness, harassment in the second degree and exposure of a person, and imposed sentence. The appeal from the judgment of conviction brings up for review an order of that court (Donald Leo, J.) dated March 7, 2018 denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds and an order of that court (Michael D. Kitsis, J.) dated June 29, 2018, which, upon reargument, adhered to its prior determination in an order dated June 6, 2018 denying defendant's motion to suppress physical and identification evidence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in an accusatory instrument with public lewdness (Penal Law § 245.00 [a]), harassment in the second degree (Penal Law § 240.26 [1]) and exposure of a person (Penal Law § 245.01). According to the accusatory instrument, defendant masturbated on a train in public view, and, when the complainant, who was seated in the same train car, exited, defendant exited, too, and remained on the train station platform staring at the complainant. Defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, which [*2]motion was denied by order dated March 7, 2018 (Donald Leo, J.). Defendant also moved to suppress physical and identification evidence, which motion was denied by order dated June 6, 2018 (Michael D. Kitsis, J.), and then for leave to reargue that motion. By order dated June 29, 2018, upon reargument, the court (Michael D. Kitsis, J.) adhered to its prior determination. Following a nonjury trial, defendant was convicted of all three charges and sentenced. The Criminal Court found that 14 days were chargeable against the People. Defendant is correct that the Criminal Court should not have summarily excluded the adjournment periods from November 14 to December 14, 2017 and from December 14, 2017 to January 9, 2018 based upon the prosecution's claim that defendant's absence on the November 14th and December 14th appearance dates, when he was incarcerated in lieu of bail, was due to his own refusal to be produced in court. However, on each of these two court dates, defense counsel participated extensively in selecting the adjournment dates due to her own scheduling conflicts, rendering all time, beyond the six days requested by the People on December 14, 2017 due to their non-readiness, excludable on consent (see CPL 30.30 [4] [b]; People v Barden, 27 NY3d 550, 554 [2016]). The Criminal Court correctly excluded the January 9 - February 6, 2018 adjournment period. It is undisputed that defense counsel had informed the prosecutor in advance that she would not be present on January 9, 2018 and to have a "tentative adjournment date of the 17th" (see CPL 30.30 [4] [f]; People v Reed, 19 AD3d 312, 318 [2005]). Consequently, contrary to defendant's contention, under the circumstances, the People did not have to have their witnesses in court to be ready on January 9, 2018. In view of the foregoing, the People did not surpass the 60 days of chargeable time allotted to them by statute (see CPL 30.30 [1] [c]) and, thus, the Criminal Court properly denied defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds. Defendant argues that his suppression motion should have been granted because the lineup was suggestive and, for the first time on appeal, because the photo array was unduly suggestive. While we find that the photo array was suggestive, it was not, standing alone, unduly suggestive. However, coupled with text messages to the complainant from Detective Spencer Strauss (Detective) prior to the complainant viewing the photo array, it was unduly suggestive and we are therefore compelled to address this improper police conduct. Defendant has long, curly hair, and other individuals with long hair were represented in the photo array. However, (1) defendant was the only individual in the photo array with curly long hair, while the other individuals in the photo array have straight long hair; and (2) prior to the complainant viewing the photo array, the Detective sent text messages to the complainant notifying her that there was a "big break" in the case and that the Detective was "picking up the perpetrator." This created an unduly suggestive photo array atmosphere which was error, and cannot be ignored. This atmosphere carried over into the lineup. In view of the foregoing, we find that there was an unduly suggestive identification which "create[d] a substantial likelihood that the defendant [would] be singled out for identification" (People v Chipp, 75 NY2d 327, 336 [1990]). "However, in light of the overwhelming evidence of [] defendant's guilt . . . we conclude that the error was harmless beyond a reasonable doubt" (People v Riddick, 251 AD2d 517, 518 [1998] [citations omitted]). Indeed, this case presents a particularly strong showing of harmless error. The complainant took a photograph of defendant [*3]during the incident. Moreover, the complainant also provided a specific description of the pink satin jacket defendant was wearing at the time he committed these acts; the same jacket defendant was wearing when arrested. Contrary to defendant's argument, the evidence—photographic, physical and testimonial—was legally sufficient to demonstrate that defendant was guilty of public lewdness and exposure of a person. Defendant's conviction of those two charges also was not against the weight of the trial evidence. Furthermore, while defendant argues that the evidence was legally insufficient to establish his guilt of harassment in the second degree pursuant to Penal Law § 240.26 (1), the evidence demonstrated beyond a reasonable doubt that, "with intent to harass, annoy or alarm," defendant "follow[ed] [the complainant] in or about a public place or places" (Penal Law § 240.26 [2]). "[A] conviction under Penal Law § 240.26 will be affirmed if the evidence establishes a violation of any one of the subdivisions of the statute" (People v Dorsett, 24 Misc 3d 131[A], 2009 NY Slip Op 51363[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; see People v Todaro, 26 NY2d 325, 330 [1970]; People v Carcel, 3 NY2d 327 [1947]). This conviction also was not against the weight of the trial evidence. Accordingly, the judgment of conviction is affirmed. WESTON, J.P., and TOUSSAINT, J., concur. GOLIA, J., concurs in the following memorandum: I agree with my colleagues that the judgment of conviction should be affirmed. However, defendant's argument, made for the first time on appeal, that the photo array identification of him was unduly suggestive is unpreserved, and, unlike the majority, I decline to review it in the interest of justice. Were I to review it, I would agree with my colleagues in the majority that, standing alone, it was not unduly suggestive. Further, I conclude that defendant's preserved contention that the lineup, standing alone (see generally People v Chipp, 75 NY2d 327, 336 [1990]), was unduly suggestive is without merit under the circumstances presented—"the participants in the lineup were reasonably similar in appearance to [] defendant, and the police took reasonable steps to conceal [] defendant's [hair] by requiring that the lineup participants, including [] defendant, wear hats to cover their hair" (People v Hodges, 155 AD3d 767, 767-768 [2017]). Prior to the photo array, the detective texted the complainant that there was a "[b]ig break on case" and, following the photo array but prior to the lineup, he texted the complainant that he would "be picking up the perpetrator later this morning." Neither of these statements rendered the photo array or lineup unduly suggestive (see People v Cruz, 55 AD3d 365 [2008]; People v Johnson, 38 AD3d 569 [2007]). In any event, for the reasons set forth in the majority, error, if any, must be deemed harmless (see People v Adams, 53 NY2d 241, 252 [1981]; People v Gonzalez, 27 NY2d 53, 58 [1970]; People v Riddick, 251 AD2d 517, 518 [1998]). "[A]ny possible suggestiveness did not render the identification testimony of the complaining witness unreliable, since she clearly had a strong independent source upon which to make her in-court identification" (People v Ataee, 2003 NY Slip Op 50977[U], at *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]; see Adams, 53 NY2d 241; Riddick, 251 AD2d 517). Finally, I am in agreement with the majority's conclusion that defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds was properly denied and that defendant's convictions of public lewdness, harassment in the second degree and exposure of a [*4]person were supported by legally sufficient evidence and the guilty verdicts were not against the weight of the evidence. ENTER: Paul Kenny Chief Clerk Decision Date: September 23, 2022