Opinion
KA 01-02455.
Decided March 19, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered August 9, 2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JESSAMINE I. JACKSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, HURLBUTT, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the second degree (§ 265.03 [2]). Defendant's contentions concerning Supreme Court's Wade ruling have not been preserved for our review ( see CPL 470.05; People v. Clark, 262 A.D.2d 1051, lv denied 93 N.Y.2d 1016). In any event, those contentions lack merit. The fact that an eyewitness to the murder was shown two photographic arrays does not render the identification procedure unduly suggestive ( see People v. Khouri, 259 A.D.2d 498, lv denied 93 N.Y.2d 900; People v. Chapman, 161 A.D.2d 1156, lv denied 76 N.Y.2d 854). Defendant did not otherwise establish that the identification procedure was unduly suggestive and thus, contrary to defendant's contention, the People were not required to establish an independent basis for the eyewitness's in-court identification of defendant ( see People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833).
Also contrary to defendant's contention, the court properly determined that defendant's statement to police was admissible. The evidence at the Huntley hearing establishes that the statement was spontaneous and not the product of police questioning or its equivalent ( see People v. Taylor, 302 A.D.2d 868, lv denied 99 N.Y.2d 658; People v. Parker, 299 A.D.2d 859, 860; People v. Lyons, 125 A.D.2d 593, 595, lv denied 69 N.Y.2d 952). Despite inconsistencies in the testimony of the People's witnesses, we conclude that the verdict is not against the weight of the evidence ( see People v. Horne, 2 A.D.3d 1399; People v. Bell, 234 A.D.2d 915, 915-916, lv denied 89 N.Y.2d 1009; see generally People v. Bleakley, 69 N.Y.2d 490, 495). The People correctly concede that the prosecutor erred in asking the People's firearms expert whether the gun involved in the case had been involved in other homicides and that the court erred in overruling defense counsel's objection thereto. We agree with the People, however, that the error is harmless. The evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant otherwise would have been acquitted ( see People v. Hill, 300 A.D.2d 1125, 1126, lv denied 99 N.Y.2d 615; People v. Smith [appeal No. 1], 266 A.D.2d 889, lv denied 94 N.Y.2d 907; People v. Schrader, 251 A.D.2d 1032, 1033, lv denied 92 N.Y.2d 882; see generally People v. Crimmins, 36 N.Y.2d 230, 241-242).
Defendant failed to preserve for our review his contention that the prosecutor engaged in misconduct during summation by vouching for the credibility of a witness who was receiving a benefit from testifying ( see People v. Cox, 256 A.D.2d 1244, lv denied 93 N.Y.2d 923; People v. Greening, 254 A.D.2d 739, 740, lv denied 92 N.Y.2d 1032). Defendant further contends that the prosecutor improperly shifted the burden of proof to the defense during summation by stating that, in order to find defendant not guilty, the jury would have to find that the eyewitness to the shooting was a liar. Although the court overruled defendant's objection to that statement, when defense counsel again raised the same objection at a precharge conference, the court stated that it would address the matter in its charge on the People's burden of proof. Because defendant did not thereafter object to the charge as given, we conclude that defendant also failed to preserve for our review his contention that the prosecutor's summation improperly shifted the burden of proof to the defense ( see People v. Phillips, 136 A.D.2d 930, 931, lv denied 71 N.Y.2d 972). We decline to exercise our power to review defendant's contentions concerning the prosecutor's summation as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Contrary to defendant's further contention, defense counsel's failure to move for an inspection of the grand jury minutes does not by itself constitute ineffective assistance of counsel ( see People v. Jurjens, 291 A.D.2d 839, lv denied 98 N.Y.2d 652; see also People v. Workman, 277 A.D.2d 1029, 1031-1032, lv denied 96 N.Y.2d 764), and we conclude that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147). Finally, the sentence is neither unduly harsh nor severe.