Opinion
2013-05269, Ind. No. 94/12.
04-06-2016
The PEOPLE, etc., respondent, v. Christopher ROBINSON, appellant.
Papa DePaola & Brounstein, Bayside, N.Y. (Michael E. Soffer of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Cristin N. Connell, and Joseph Mogelnicki of counsel), for respondent.
Papa DePaola & Brounstein, Bayside, N.Y. (Michael E. Soffer of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Cristin N. Connell, and Joseph Mogelnicki of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered April 17, 2013, convicting him of robbery in the first degree (eight counts), burglary in the first degree (five counts), robbery in the second degree (two counts), criminal possession of a weapon in the second degree, burglary in the second degree, criminal possession of a weapon in the third degree, and assault in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Calabrese, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed. The defendant improperly relies, in part, upon trial testimony to challenge the hearing court's determination denying suppression of showup identification evidence. Trial testimony may not be considered in evaluating a suppression ruling on appeal (see People v. Abrew, 95 N.Y.2d 806, 808, 710 N.Y.S.2d 833, 732 N.E.2d 940 ; People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317 ; People v. Hudson, 71 A.D.3d 1046, 1047, 900 N.Y.S.2d 66 ).
The defendant contends that he was denied due process and deprived of a fair trial because the People failed to disclose, prior to the suppression hearing, that one of the complainants had seen him but failed to identify him during the first of two showup procedures. Contrary to the defendant's contention, the failure to disclose this information did not deprive the defendant of a fair trial. Moreover, although the People's failure to provide the defendant with notice of the first showup procedure violated the provisions of CPL 710.30 (see People v.
Lopez, 84 N.Y.2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501 ), this violation was harmless beyond a reasonable doubt, since the evidence of the defendant's guilt, without the testimony, was overwhelming, and there was no reasonable possibility that the error might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Ward, 116 A.D.3d 989, 984 N.Y.S.2d 123 ; People v. Siler, 45 A.D.3d 1403, 844 N.Y.S.2d 823 ; People v. Francis, 303 A.D.2d 598, 756 N.Y.S.2d 627 ; People v. Williams, 186 A.D.2d 698, 588 N.Y.S.2d 644 ). Moreover, there was no Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ). The information, if disclosed, would not have affected the ultimate decision on the issues in question (see People v. Geaslen, 54 N.Y.2d 510, 446 N.Y.S.2d 227, 430 N.E.2d 1280 ; People v. Scott, 216 A.D.2d 592, 628 N.Y.S.2d 965, affd. 88 N.Y.2d 888, 644 N.Y.S.2d 913, 667 N.E.2d 923 ; see also People v. West, 184 A.D.2d 743, 743, 585 N.Y.S.2d 467 ; People v. Jones, 171 A.D.2d 757, 757, 567 N.Y.S.2d 311 ).
Contrary to the defendant's contention, that complainant's identification testimony was not incredible as a matter of law (see People v. Scott, 65 A.D.3d 707, 884 N.Y.S.2d 263 ; People v. John, 51 A.D.3d 819, 859 N.Y.S.2d 456 ). In any event, this was not a case where all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence, and where the jury is left without basis, other than impermissible speculation, for its determination of either (see People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257 ; People v. Crawford, 38 A.D.3d 680, 681, 832 N.Y.S.2d 254 ).
The defendant failed to preserve for appellate review his contention that the trial court erred in failing to re-open the Wade hearing or declare a mistrial, as the application by his trial counsel was merely to preclude the identification testimony (see People v. Clanton, 69 A.D.3d 754, 895 N.Y.S.2d 99 ). In any event, the defendant “failed to demonstrate that he discovered additional facts, not discoverable with reasonable diligence before the determination of the motion, that would have affected the court's ultimate determination of his suppression motion” (People v. Ekwegbalu, 131 A.D.3d 982, 984, 15 N.Y.S.3d 847 ; see People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980 ; People v. Fuentes, 53 N.Y.2d 892, 894, 440 N.Y.S.2d 625, 423 N.E.2d 48 ; CPL § 710.40[4] ), and, under the circumstances, a mistrial was not warranted (see CPL 280.10[1] ).
The defendant failed to preserve for appellate review his contention that certain testimony by a police witness constituted improper bolstering (see People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 ) since he did not join in his codefendant's objection nor raise any objection on his own behalf (see People v. Moore, 49 A.D.3d 901, 854 N.Y.S.2d 498 ; People v. Islam, 22 A.D.3d 599, 804 N.Y.S.2d 329 ). In any event, there was no significant probability that, but for the error, the jury would have acquitted the defendant (see People v. Clanton, 69 A.D.3d at 754, 895 N.Y.S.2d 99 ; People v. Toro, 151 A.D.2d 705, 542 N.Y.S.2d 384 ).
The defendant's contention that a police witness committed perjury and that the prosecutor suborned it is unpreserved for appellate review (see People v. Tate, 110 A.D.3d 1013, 972 N.Y.S.2d 719 ; People v. Garcia, 57 A.D.3d 918, 869 N.Y.S.2d 618 ; People v. Jordan, 181 A.D.2d 745, 581 N.Y.S.2d 71 ; CPL 470.05[2] ). In any event, the contention is without merit (see People v. Tate, 110 A.D.3d at 1014, 972 N.Y.S.2d 719 ; People v. Rios, 81 A.D.3d 489, 917 N.Y.S.2d 152 ; People v. Cusamano, 22 A.D.3d 427, 805 N.Y.S.2d 1 ; People v. Jordan, 181 A.D.2d at 745, 581 N.Y.S.2d 71 ).
The defendant contends that the verdict was against the weight of the evidence due to, among other things, the testimony of the arresting police officer concerning his ability to see the defendant holding and then tossing a gun, which the defendant contends is both implausible and inconsistent with that of another police witness. The defendant also points to other alleged discrepancies in the People's proof, including the failure to recover diamond earrings taken from a complainant. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict was not against the weight of the evidence (see People v. Lucas, 111 A.D.3d 763, 974 N.Y.S.2d 805 ).
The defendant's general one-word objection to the challenged comments made by the prosecutor on summation did not preserve the specific claims now raised on appeal (see People v. Floyd, 97 A.D.3d 837, 948 N.Y.S.2d 683 ), inter alia, that the prosecutor improperly shifted the burden of proof to the defendant and relied on facts not in evidence. In any event, the comments were either fair comment on the evidence or the inferences to be drawn therefrom (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), responsive to arguments and theories presented on the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 ) or harmless under the circumstances (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). Moreover, the comments did not constitute an impermissible effort to shift the burden of proof (see People v. Peters, 98 A.D.3d 587, 589, 949 N.Y.S.2d 491 ).
The defendant's contention that certain counts in the indictment were multiplicitous is unpreserved for appellate review (see People v. Allen, 24 N.Y.3d 441, 448–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ; People v. Cruz, 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112 ), and, in any event, without merit.