| People v Grant |
| 2007 NY Slip Op 07064 [43 AD3d 800] |
| September 27, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamalGrant, Appellant. |
—[*1] Jamal Grant, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., at Dardenhearing and dismissal motion; John Cataldo, J., at Wade hearing; Charles Tejada, J., atjury trial and sentence), rendered November 18, 2004, convicting defendant of attempted murderin the second degree, assault in the first degree, criminal possession of a weapon in the seconddegree and two counts of criminal possession of a weapon in the third degree, and sentencinghim, as a second felony offender, to an aggregate term of 25 years, and order, same court(Charles Tejada, J.), entered on or about August 15, 2006, which denied defendant's CPL 440.10motion to vacate the judgment, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony. We haveviewed a photograph of the lineup and we conclude that there was nothing to single defendantout for identification (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied498 US 833 [1990]). While defendant argues that he was significantly younger and taller than theother lineup participants, we note that the victim's description did not include age, and onlycharacterized the assailant's height as "tall." Furthermore, the photograph reveals that theparticipants' physical appearances did not reflect any disparity in their actual ages (see People v Amuso, 39 AD3d425 [2007], lv denied 9 NY3d 862 [2007]). As for the alleged disparity in height, thepolice minimized it by conducting a seated lineup. Although the police acceded to the victim'srequest that defendant and a filler who was almost as tall as defendant stand up, this event did notrender the lineup unduly suggestive (cf. People v LeCorps, 19 AD3d 216 [2005], lv denied 5 NY3d807 [2005]).
At trial, in an effort to cast doubt on the reliability of the victim's identification testimony,defendant sought to elicit the actual ages of the lineup fillers. Even if we were to conclude thatthe court should have permitted this inquiry, we would find that defendant was not prejudiced,because the lineup photo was in evidence, and because, as noted, the actual ages of [*2]the fillers were not significant (see People v Amuso, 39 AD3d 425 [2007], supra). To theextent that defendant is raising a constitutional claim, such claim is unpreserved and we declineto review it in the interest of justice. Were we to review this claim, we would find that the court'sruling did not violate defendant's right to present a defense (see Crane v Kentucky, 476US 683, 689-690 [1986]).
The court properly denied defendant's motion to dismiss the indictment. Any defects in theprosecutor's cross-examination of defendant in the grand jury fell far short of impairing theintegrity of the proceeding (see CPL 210.35 [5]; People v Darby, 75 NY2d 449,455 [1990]).
This Court has examined the minutes of an in camera Darden hearing (People vDarden, 34 NY2d 177 [1974]). We find that the search warrant was based on probable cause.
Since defendant's challenge to the court's supplemental instruction to the jury was ondifferent grounds from those he raised on appeal, his present arguments, including hisconstitutional claim, are unpreserved and we decline to review them in the interest of justice.Were we to review these claims, we would find that the court responded meaningfully (seePeople v Almodovar, 62 NY2d 126, 131 [1984]) and appropriately cautioned the jurors inaccordance with the principles set forth in People v Maragh (94 NY2d 569, 574 [2000]).
Defendant's CPL 330.30 (2) motion to set aside the verdict on the ground of jury misconductwas procedurally defective, in that it was not supported by sworn allegations of fact (seeCPL 330.40 [2] [a]). The motion was also without merit, because it was based on a juror'sattempt to impeach the verdict with regard to the jury's deliberative process, rather than anyoutside influences (see People vKaren, 17 AD3d 865, 866-867 [2005], lv denied 5 NY3d 764 [2005]; Peoplev Redd, 164 AD2d 34, 38-39 [1990]).
The court properly denied defendant's CPL 440.10 motion, since the submissions on themotion and the trial record establish that defendant received effective assistance under the stateand federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; seealso Strickland v Washington, 466 US 668 [1984]). We have considered and rejecteddefendant's claim that his counsel should have moved to reopen the Wade hearing basedon trial evidence (see People vTaylor, 36 AD3d 562 [2007], lv denied 8 NY3d 991 [2007]), as well as hisremaining ineffective assistance claims, including those contained in his pro se supplementalbrief. Defendant's additional pro se arguments are without merit.
The record does not establish that defendant's sentence was based on any improper criteria,and we perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Saxe,Friedman, Marlow and Williams, JJ.