Opinion
2012-07-5
The PEOPLE, etc., respondent, v. Anthony BOWEN–ALLEN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Gretchen Robinson of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Gretchen Robinson of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered June 1, 2010, convicting him of burglary in the second degree, petit larceny, criminal possession of stolen property in the fifth degree, and criminal possession of marijuana in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Kohm, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence and identification testimony.
ORDERED that the judgment is affirmed.
The defendant's present contentions that he was arrested without probable cause and that the showup identifications made by two eyewitnesses were unduly suggestive, raised in his pro se supplemental brief, are unpreserved for appellate review (see CPL 470.05[2]; see People v. Parker, 74 A.D.3d 1365, 1366, 903 N.Y.S.2d 264;People v. Hamdam, 58 A.D.3d 752, 871 N.Y.S.2d 708). In any event, these contentions are without merit ( see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654;People v. Amico, 78 A.D.3d 1190, 913 N.Y.S.2d 675;People v. Cruz, 31 A.D.3d 660, 661, 818 N.Y.S.2d 302;People v. Smith, 271 A.D.2d 332, 707 N.Y.S.2d 154;People v. Grassia, 195 A.D.2d 607, 601 N.Y.S.2d 124;People v. Monforte, 183 A.D.2d 851, 852, 584 N.Y.S.2d 98). The defendant's reliance on trial testimony to challenge the hearing court's determination is improper, since he failed to move to reopen the suppression hearing ( see People v. Wellington, 84 A.D.3d 984, 985, 923 N.Y.S.2d 581; People v. Rice, 39 A.D.3d 567, 568, 834 N.Y.S.2d 254;People v. Boynton, 35 A.D.3d 875, 876, 826 N.Y.S.2d 437).
Any prejudice that may have resulted from the prosecutor's questioning of the defendant about a prior marijuana arrest in the absence of a Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) was alleviated when the Supreme Court sustained the defendant's objection to the question and provided a curative instruction to the jury ( see People v. Rayford, 80 A.D.3d 780, 781, 916 N.Y.S.2d 603;People v. McNeil, 77 A.D.3d 685, 908 N.Y.S.2d 351).
The defendant's contentions that reversible error resulted from certain allegedly improper questions the prosecutor asked him during cross-examination, from certain testimony elicited from the rebuttal witness during direct examination, and from allegedly improper summation remarks are largely unpreserved for appellate review ( seeCPL 470.05[2]; People v. West, 86 A.D.3d 583, 584, 926 N.Y.S.2d 659;People v. Prowse, 60 A.D.3d 703, 704, 875 N.Y.S.2d 121;People v. Crawford, 54 A.D.3d 961, 962, 863 N.Y.S.2d 830). In any event, to the extent that some of the prosecutor's questioning of the defendant on cross-examination was improper, it does not warrant reversal. Moreover, the challenged testimony that the prosecutor elicited from the rebuttal witness does not warrant reversal ( see People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305;People v. Siriani, 27 A.D.3d 670, 811 N.Y.S.2d 127;People v. Overlee, 236 A.D.2d 133, 136, 666 N.Y.S.2d 572). Furthermore, the prosecutor's remarks during summation were mostly fair comment on the evidence, permissible rhetorical comment, or responsive to the summation of defense counsel ( see People v. Dorgan, 42 A.D.3d 505, 505, 838 N.Y.S.2d 787;People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57;People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714;People v. Vaughn, 209 A.D.2d 459, 459–460, 619 N.Y.S.2d 573). To the extent that some of the comments were improper, they were sufficiently addressed by the trial court's instructions to the jury ( see People v. Evans, 291 A.D.2d 569, 738 N.Y.S.2d 244;People v. Brown, 272 A.D.2d 338, 339, 708 N.Y.S.2d 302), or were not so flagrant as to deny the defendant a fair trial ( see People v. Jenkins, 93 A.D.3d 861, 940 N.Y.S.2d 874).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's contention that he was denied the effective assistance of counsel, raised in his pro se supplemental brief, is without merit ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;see also People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213).
The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.