Opinion
8309 Ind. 986/12
02-05-2019
The PEOPLE of the State of New York, Respondent, v. Nino LEE, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), and Kirkland & Ellis LLP, New York (Daniel Herz–Roiphe of counsel), for appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), and Kirkland & Ellis LLP, New York (Daniel Herz–Roiphe of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.
Friedman, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
At a Rodriguez hearing (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ), a detective's testimony established that a witness was sufficiently familiar with defendant so that his identification of defendant was confirmatory. The People were not obligated to call the identifying witness (see e. g. People v. Espinal, 262 A.D.2d 245, 693 N.Y.S.2d 534 [1st Dept. 1999], lv denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937 [1999] ), because the detective gave detailed testimony about the witness's relationship with defendant. The witness knew defendant, a frequent customer in the witness's store, by his first name, and saw him several times a week over a period of three years.
Defendant's request that the witness testify at the Rodriguez hearing was insufficient to preserve his present claim that such testimony was constitutionally required under the Confrontation Clause, and we decline to review it in the interest of justice. As an alternative holding, we reject this claim on the merits, in light of the fundamental difference between a suppression hearing, where hearsay is generally admissible, and a trial (see People v. Terry, 224 A.D.2d 202, 203, 637 N.Y.S.2d 694 [1st Dept. 1996], lv denied 88 N.Y.2d 943, 647 N.Y.S.2d 176, 670 N.E.2d 460 [1996] ; see also People v. Mitchell, 124 A.D.3d 912, 914, 2 N.Y.S.3d 207 [2d Dept. 2015] ; People v. Brink, 31 A.D.3d 1139, 1140, 818 N.Y.S.2d 374 [4th Dept. 2006], lv denied 7 N.Y.3d 865, 824 N.Y.S.2d 610, 857 N.E.2d 1141 [2006] ).
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning identification and credibility.