Opinion
KA 04-01124.
July 27, 2006.
Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered April 20, 2004. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, robbery in the second degree, burglary in the first degree, unlawful imprisonment in the second degree, criminal possession of a weapon in the second degree, and petit larceny.
Present-Pigott, Jr., P.J., Hurlbutt, Scudder, Green and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, robbery in the first degree (Penal Law § 160.15), robbery in the second degree (§ 160.10 [1]), and burglary in the first degree (§ 140.30 [2]). We reject the contention of defendant that Crawford v Washington ( 541 US 36) applies to his pretrial suppression hearing and that reversal is required because his right of confrontation was violated at that hearing. As the Supreme Court has written, "[t]he right [of] confrontation is basically a trial right" ( Barber v Page, 390 US 719, 725; see People v Robinson, 9 Misc 3d 676, 678-680; see also United States v Thompson, 2005 WL 3050634, *4-6, 2005 US Dist LEXIS 27763, * 12-20 [ED Mo, Nov. 14, 2005]; People v Felder, 129 P.3d 1072, 1073-1074 [Colo App 2005]; Vanmeter v State, 165 SW3d 68, 74-75 [Tex App 2005]). Indeed, "the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the [suppression] court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial" ( United States v Raddatz, 447 US 667, 679, reh denied 448 US 916).
Contrary to defendant's further contention, the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). We further reject defendant's contention that reversal is required based on prosecutorial misconduct on summation. Reversal based on prosecutorial misconduct is "`mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he has been denied due process of law'" ( People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711, quoting People v Mott, 94 AD2d 415, 419), and there is no such substantial prejudice in this case. Rather, the record establishes that the prosecutor's comments on summation were a fair response to defense counsel's summation ( see generally People v Halm, 81 NY2d 819, 821; People v Beggs, 19 AD3d 1150, lv denied 5 NY3d 803).
Also contrary to defendant's contention, County Court properly allowed the People to amend the indictment to correct a typographical error. The amendment did not change the theory of the prosecution, nor did it "otherwise tend to prejudice the defendant on the merits" (CPL 200.70). In addition, the court's Sandoval ruling, pursuant to which the court allowed inquiry into defendant's conviction of rape in the second degree, does not constitute an abuse of discretion ( see generally People v Hayes, 97 NY2d 203, 207-208). That conviction demonstrated the willingness of defendant to put his own interests before those of society and was therefore relevant to "the question of his veracity" ( People v Bennette, 56 NY2d 142, 148). We reject the further contention of defendant that he received ineffective assistance of counsel ( see generally People v Benevento, 91 NY2d 708, 712-713; People v Baldi, 54 NY2d 137, 147). Here, defendant failed to "`demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings" ( Benevento, 91 NY2d at 712; see People v Rivera, 71 NY2d 705, 709). The sentence is not unduly harsh or severe.
We have considered defendant's remaining contentions and conclude that they are without merit.