Opinion
2016–00571 Ind. No. 8968/13
12-26-2018
The PEOPLE, etc., Respondent, v. Tremaine HOLMES, Appellant.
Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Kristen A. Carroll of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Kristen A. Carroll of counsel), for respondent.
SHERI S. ROMAN, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial by remarks made by the prosecutor during summation is without merit. The challenged remarks either were fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), were a fair response to defense counsel's summation (see People v. Marcus, 112 A.D.3d 652, 653, 975 N.Y.S.2d 771 ; People v. Rogers, 106 A.D.3d 1029, 1030, 965 N.Y.S.2d 361 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ; People v. Cox, 161 A.D.2d 724, 725, 555 N.Y.S.2d 862 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury (see People v. Elder, 152 A.D.3d 787, 789, 59 N.Y.S.3d 134 ; People v. Bunting, 146 A.D.3d 794, 795, 43 N.Y.S.3d 910 ; People v. Hamilton, 135 A.D.3d 958, 22 N.Y.S.3d 904 ).
The defendant's claim that he was deprived of a fair trial by the Supreme Court's failure to give the jury an expanded identification charge is unpreserved for appellate review, as defense counsel merely requested the "generic" identification charge (see People v. Campbell, 142 A.D.3d 623, 624, 36 N.Y.S.3d 503 ; People v. Perez, 77 N.Y.2d 928, 569 N.Y.S.2d 600, 572 N.E.2d 41 ). In any event, the contention is without merit. The court's charge constituted a correct statement of the law which sufficiently apprised the jury that the reasonable doubt standard applied to identification (see People v. Knight, 87 N.Y.2d 873, 638 N.Y.S.2d 938, 662 N.E.2d 256 ; People v. Perez, 77 N.Y.2d 928, 569 N.Y.S.2d 600, 572 N.E.2d 41 ; People v. Newton, 46 N.Y.2d 877, 414 N.Y.S.2d 680, 387 N.E.2d 612 ; People v. Campbell, 142 A.D.3d at 624, 36 N.Y.S.3d 503 ). "Moreover, when evaluated against the background of all the evidence presented, the failure to expand the charge on identification did not deprive the defendant of a fair trial" ( People v. Campbell, 142 A.D.3d at 624, 36 N.Y.S.3d 503 ; see People v. Knight, 87 N.Y.2d at 875, 638 N.Y.S.2d 938, 662 N.E.2d 256 ; People v. Crimmins, 36 N.Y.2d 230, 238, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
The defendant next contends that testimony elicited from a police detective that the defendant was arrested "[a]fter the lineup was conducted" constituted impermissible bolstering. This contention is not preserved for appellate review, as defense counsel did not object to the admission of the challenged testimony (see CPL 470.05[2] ; People v. Locenitt, 157 A.D.3d 905, 907, 66 N.Y.S.3d 908 ; People v. Bonilla, 151 A.D.3d 735, 736, 58 N.Y.S.3d 48 ; People v. Jones, 131 A.D.3d 1179, 1180, 16 N.Y.S.3d 328 ; People v. Speaks, 124 A.D.3d 689, 691, 1 N.Y.S.3d 257 ). However, contrary to the People's assertion, the claim was not waived by defense counsel's elicitation on cross-examination of similar testimony, because defense counsel was not the first to elicit the challenged testimony and did not base any of his summation comments on the detective's testimony regarding the lineup (cf. People v. Bonilla, 151 A.D.3d at 736, 58 N.Y.S.3d 48 ; People v. Bryan, 50 A.D.3d 1049, 1050–1051, 856 N.Y.S.2d 227 ). Under the circumstances, we reach this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Lee, 22 A.D.3d 602, 602–603, 801 N.Y.S.2d 753 ).
We conclude that the detective's testimony that the defendant was arrested "[a]fter the lineup was conducted" could have led the jury to believe that the police were induced to take action as a result of the lineup identification, and therefore constituted improper implicit bolstering of the witness's identification testimony (see People v. Holt, 67 N.Y.2d 819, 821, 501 N.Y.S.2d 641, 492 N.E.2d 769 ; People v. Jones, 131 A.D.3d 1179, 1180, 16 N.Y.S.3d 328 ; People v. Rankins, 81 A.D.3d 857, 858, 916 N.Y.S.2d 618 ; People v. Nesbitt, 77 A.D.3d 854, 855, 910 N.Y.S.2d 471 ; People v. Clark, 28 A.D.3d 785, 786, 816 N.Y.S.2d 109 ; People v. Lee, 22 A.D.3d at 602–603, 801 N.Y.S.2d 753 ; People v. Samuels, 22 A.D.3d 507, 509, 802 N.Y.S.2d 458 ; People v. Fields, 309 A.D.2d 945, 945–946, 766 N.Y.S.2d 365 ; see generally People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 ).
The People nevertheless maintain that this error was harmless in the context of this case. "Harmless error analysis proceeds in two stages" ( People v. Johnson, 57 N.Y.2d 969, 970, 457 N.Y.S.2d 230, 443 N.E.2d 478 ). First, "unless the proof of the defendant's guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error" ( People v. Crimmins, 36 N.Y.2d at 241, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). Second, for a nonconstitutional error to be harmless the appellate court must conclude "that there is [no] significant probability ... in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred" ( id. at 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; see People v. Johnson, 57 N.Y.2d at 970, 457 N.Y.S.2d 230, 443 N.E.2d 478 ).
In analyzing the effect of a bolstering error, the Court of Appeals has stated that "[t]he standard of harmlessness in a Trowbridge error case is whether ‘the evidence of identity is so strong that there is no substantial issue on the point’ " ( People v. Mobley, 56 N.Y.2d 584, 585, 450 N.Y.S.2d 302, 435 N.E.2d 672, quoting People v. Malloy, 22 N.Y.2d 559, 567, 293 N.Y.S.2d 542, 240 N.E.2d 37 ). In the context of a case involving an identification by a single witness, the Court of Appeals has concluded that a bolstering error was harmless in light of, among other things, the "unusually credit-worthy" nature of the witness's identification ( People v. Johnson, 57 N.Y.2d at 970, 457 N.Y.S.2d 230, 443 N.E.2d 478 ).
Here, although the only direct evidence connecting the defendant to the commission of the crimes charged was the identification testimony of a single witness, the evidence of the defendant's guilt, without reference to the error, was overwhelming (see id. at 970–971, 457 N.Y.S.2d 230, 443 N.E.2d 478 ). The record demonstrates that the witness watched as the defendant approached the witness in a well-lit area and that the defendant's face was not obstructed in any way. The witness testified that he recognized the defendant at the time of the shooting because the witness had seen the defendant around the neighborhood on prior occasions. Furthermore, although the physical evidence recovered from the crime scene did not link the defendant to the crime, it was nevertheless consistent with the witness's account of the shooting. Under the circumstances, the testimony of the witness identifying the defendant was "unusually credit-worthy" ( id. at 970, 457 N.Y.S.2d 230, 443 N.E.2d 478 ), such that it may be said that there was "no substantial issue on the point" ( People v. Malloy, 22 N.Y.2d at 567, 293 N.Y.S.2d 542, 240 N.E.2d 37 ; see People v. Johnson, 57 N.Y.2d at 970–971, 457 N.Y.S.2d 230, 443 N.E.2d 478 ; see also People v. Mobley, 56 N.Y.2d at 585–586, 450 N.Y.S.2d 302, 435 N.E.2d 672 ). Furthermore, the strength of the witness's identification testimony and the fleeting nature of the improper testimony precluded any significant probability that the jury would have acquitted the defendant had it not been for the improper bolstering (see People v. Johnson, 57 N.Y.2d at 971, 457 N.Y.S.2d 230, 443 N.E.2d 478 ; People v. Stanley, 185 A.D.2d 827, 586 N.Y.S.2d 649 ; People v. Bryan, 179 A.D.2d 667, 578 N.Y.S.2d 608 ; People v. Jenkins, 133 A.D.2d 279, 519 N.Y.S.2d 68 ). Accordingly, the People's impermissible bolstering of the identification testimony was harmless in the context of this case.
The defendant's contention that he was denied the effective assistance of counsel is based, in part, on matter dehors the record, and thus constitutes a "mixed claim" of ineffective assistance of counsel ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Hili, 158 A.D.3d 647, 648, 67 N.Y.S.3d 851 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Crosby, 133 A.D.3d 681, 682, 20 N.Y.S.3d 100 ; People v. Williams, 120 A.D.3d 721, 724, 991 N.Y.S.2d 427 ; People v. Addison, 107 A.D.3d 730, 732, 966 N.Y.S.2d 217 ; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ).
ROMAN, J.P., MILLER, CONNOLLY and IANNACCI, JJ., concur.