Opinion
294 KA 11-01265
05-08-2015
The PEOPLE of the State of New York, Respondent, v. Timothy L. KEELS, Defendant–Appellant.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10 [3] ). We reject defendant's contention that his counsel was ineffective in failing to move to reopen the Wade hearing because the determination denying his motion to suppress identification testimony was undermined by trial evidence. As an initial matter, we note that a suppression determination must be based solely on the evidence presented at the suppression hearing, and thus the court could not reconsider its Wade determination based on trial testimony (see People v. Riley, 70 N.Y.2d 523, 532, 522 N.Y.S.2d 842, 517 N.E.2d 520 ; People v. Evans, 291 A.D.2d 868, 869, 737 N.Y.S.2d 322 ). In any event, the record establishes that, at a reopened Wade hearing, the People could have called the victim to testify that he had an independent basis for his in-court identification of defendant (see People v. Elamin, 82 A.D.3d 1664, 1665, 919 N.Y.S.2d 661, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 ; People v. Hill, 53 A.D.3d 1151, 1151–1152, 860 N.Y.S.2d 780 ).
Defendant contends that the verdict is against the weight of the evidence with respect to the use of force to steal the motor vehicle (see Penal Law § 160.10 [3 ] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his contentions that he was deprived of a fair trial based on prosecutorial misconduct during examination of one of the People's witnesses and during summation (see People v. Brown, 94 A.D.3d 1461, 1462, 942 N.Y.S.2d 826, lv. denied 19 N.Y.3d 995, 951 N.Y.S.2d 471, 975 N.E.2d 917 ). In any event, those contentions are without merit. The prosecutor did not mislead the jury regarding the function of a judicial subpoena testificandum or the power of a prosecutor to compel testimony. While a subpoena may secure the attendance of a witness at trial (see CPL 610.10[1], [2] ), contrary to defendant's contention, it does not assure the cooperation of the witness (see generally People
v. Woodruff, 26 A.D.2d 236, 237, 272 N.Y.S.2d 786, affd. 21 N.Y.2d 848, 288 N.Y.S.2d 1004, 236 N.E.2d 159 ). We further conclude that the prosecutor did not vouch for a witness for the People. An argument by counsel on summation, based on the record evidence and reasonable inferences drawn therefrom, that his or her witnesses have testified truthfully is not vouching for their credibility (see People v. Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273 ; cf. United States v. Spinelli, 551 F.3d 159, 168–169, cert. denied 558 U.S. 939, 130 S.Ct. 230, 175 L.Ed.2d 243 ; United States v. Rivera, 22 F.3d 430, 437–438 ).
We reject defendant's related contention that he was denied effective assistance of counsel based on defense counsel's failure to object to the prosecutor's alleged misconduct. As noted, neither the prosecutor's questioning of the People's witness under subpoena nor her comments during summation concerning the witness's willingness to testify constituted improper vouching or other prosecutorial misconduct. Thus, defense counsel's failure to object to the allegedly improper questions to the witness under subpoena or the comments by the prosecutor on summation does not constitute ineffective assistance of counsel (see generally People v. Brown, 17 N.Y.3d 742, 743–744, 929 N.Y.S.2d 12, 952 N.E.2d 1004 ). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.