Opinion
October 17, 2000.
Judgment, Supreme Court, New York County (George Daniels, J.), rendered May 8, 1996, convicting defendant, after a jury trial, of robbery in the first degree (two counts) and robbery in the second degree, and sentencing him to three concurrent terms of 2 1/2 to 7 1/2 years, and order, same court and Justice, entered on or about August 17, 1999, which denied defendant's motion to vacate the judgment, unanimously affirmed.
Mathew Kleiner, for respondent.
Carl S. Kaplan, for defendant-appellant.
Before: Nardelli, J.P., Ellerin, Wallach, Andrias, Saxe, JJ.
Defendant failed to meet his burden of establishing that an accomplice's statement was admissible as a declaration against penal interest (_see, People v. Settles, 46 N.Y.2d 154, 167). The court correctly concluded that the portion of the statement exculpating defendant, by way of inculpating others, was not against the accomplice' s penal interest because it was an "attempt to significantly minimize his role and to exculpate himself", and that the statement was unreliable.
Defendant was not deprived of a fair trial by the challenged portions of the People's summation. These remarks were permissible responses to defense counsel's attacks on the credibility of the People's witness (see, People v. Overlee, 236 A.D.2d 134, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). To the extent that the prosecutor's summation may have exceeded the limits of permissible comment, it was harmless in view of the overwhelming evidence of defendant' s guilt (see, People v. Crimmins, 36 N.Y.2d 230).
Defendant's motion to vacate the judgment on the ground of ineffective assistance of counsel was properly denied. Defendant has not established that his trial counsel's failure to move to suppress identification testimony on the ground that it was the product of an unlawful arrest "prejudice[d] the defense or defendant's right to a fair trial" (People v. Benevento, 91 N.Y.2d 708, 714, quoting People v. Hobot, 84 N.Y.2d 1021, 102 4). The record establishes that such a motion would not have been successful. Defendant's arrest was based on probable cause in that he met a very specific description featuring a distinctive facial birthmark.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.