Opinion
2013–11123 Ind. No. 2056/12
04-25-2018
The PEOPLE, etc., respondent, v. Joseph ROBINSON, appellant.
Paul Skip Laisure, New York, N.Y. (Tammy E. Linn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Josette Simmons McGhee of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Tammy E. Linn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Josette Simmons McGhee of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D. Hollie, J.), rendered December 3, 2013, convicting him of criminal possession of a weapon in the second degree, attempted criminal sale of a firearm in the third degree, and false personation, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly concluded that the People established probable cause to arrest the defendant (see People v. Gayden, 28 N.Y.3d 1035, 1037, 42 N.Y.S.3d 667, 65 N.E.3d 696 ; People v. Jackson, 249 A.D.2d 327, 327, 670 N.Y.S.2d 895 ; People v. Lowe, 237 A.D.2d 903, 904, 654 N.Y.S.2d 518 ; People v. Irizarry, 203 A.D.2d 11, 609 N.Y.S.2d 235, affd 84 N.Y.2d 854, 617 N.Y.S.2d 455, 641 N.E.2d 1073 ; People v. Harrington, 193 A.D.2d 756, 597 N.Y.S.2d 723 ; cf. People v. Reyes, 83 N.Y.2d 945, 946, 615 N.Y.S.2d 316, 638 N.E.2d 961 ). Accordingly, the court properly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence recovered.
The defendant's contention that he was denied his constitutional rights to confront witnesses and present a defense because the Supreme Court limited his cross-examination of the confidential informant is unpreserved for appellate review (see People v. Simmons, 106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618 ). In any event, the court did not improvidently exercise its discretion in limiting the defendant's cross-examination of this witness (see People v. Hicks, 88 AD3d 817, 818, 930 N.Y.S.2d 658 ). The defendant lacked a good faith basis to question this witness on the existence of a cooperation agreement, and the court allowed the defendant sufficient inquiry into this witness's "motive to curry favor with" the People ( People v. Chin, 67 N.Y.2d 22, 30, 499 N.Y.S.2d 638, 490 N.E.2d 505 ; see People v. Hicks, 88 A.D.3d at 818–819, 930 N.Y.S.2d 658 ).
The defendant's arguments regarding the prosecutor's opening statement and summation are not fully preserved for appellate review, as he did not object to most of the allegedly improper comments and did not request a curative instruction or move for a mistrial when the Supreme Court sustained an objection that he did raise (see CPL 470.05[2] ; People v. Parker–Davidson, 89 A.D.3d 1114, 933 N.Y.S.2d 603 ; People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588 ). In any event, the prosecutor's remarks did not deprive the defendant of a fair trial. Finally, contrary to the defendant's contention, defense counsel's failure to object to the prosecutor's comments, without more, did not constitute ineffective assistance of counsel under the circumstances presented, as the defendant failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings (see People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ; People v. Gonzalez, 44 A.D.3d 790, 791, 843 N.Y.S.2d 417 ).
DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.