| People v Carrieri |
| 2008 NY Slip Op 02169 [49 AD3d 660] |
| March 11, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Carrieri, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Roni Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered June 21, 2004, convicting him of robbery in the first degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), ofthat branch of the defendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the record supports the finding of the hearing courtthat there was probable cause for his arrest (see People v Nieves, 26 AD3d 519, 520 [2006]; People v Rios, 11 AD3d 641, 642[2004]; People v Paden, 158 AD2d 554, 555 [1990]). The defendant's arrest was theresult of information provided by a confidential informant and the hearing court properlyassessed the informant's reliability in camera, sufficiently following the procedural safeguards setforth in People v Darden (34 NY2d 177, 181 [1974]; see People v Rodriguez,295 AD2d 456 [2002]). The defendant's contention that the confidential informant's identityshould have been disclosed at the suppression hearing is not preserved for appellate review(see People v Rushie, 162 AD2d 733, 734 [1990]) and, in any event, is without meritunder the circumstances of this case (see People v Darden, 34 NY2d 177, 182 [1974];People v Goggins, 34 NY2d 163, 168 [1974], cert denied 419 US 1012 [1974];People v Carpenito, 171 AD2d 45, 48-49 [1991], affd 80 NY2d 65 [1992]).
The trial court providently exercised its discretion in denying, without a hearing, thedefendant's application to permit testimony of an expert in the field of cross-racial identification.New York courts evaluate the admissibility of novel evidence under the Frye test (seeFrye v United [*2]States, 293 F 1013 [1923]; People vWernick, 89 NY2d 111 [1996]; Parker v Mobil Oil Corp., 7 NY3d 434 [2006]), pursuant to whichthe testimony must be based on principles that are generally accepted in the relevant scientificcommunity (see People v LeGrand,8 NY3d 449 [2007]; People v Wernick, 89 NY2d at 111; People v Wesley,83 NY2d 417 [1994]). Here, the testimony proffered by the defendant did not include anybasis upon which this standard could be satisfied at a hearing (People v Young, 7 NY3d 40, 45[2006]; People v Austin, 46 AD3d195 [2007]).
The trial court's minimal questioning of the defendant was solely for the purpose of clarifyingissues and proof, and ensuring the orderly and expeditious progress of the trial (see People vYut Wai Tom, 53 NY2d 44 [1981]; People v Todd, 306 AD2d 504, 505 [2003];People v Fauntleroy, 258 AD2d 664, 665 [1999]). Furthermore, any potential prejudice tothe defendant was minimized by the trial court's instructions to the jury (see People v Bembury, 14 AD3d575 [2005]).
Although it would have been error for the trial court to have permitted the prosecutor to elicithearsay testimony from a witness that other nontestifying witnesses identified the defendant as aparticipant in the crime (see People vJohnson, 7 AD3d 732, 733 [2004]; People v Jones, 305 AD2d 698, 699 [2003];People v Williams, 198 AD2d 249 [1993]), no such testimony was elicited here (see People v Barboza, 24 AD3d460, 461 [2005]; People v Nicholas,1 AD3d 614 [2003]; People v Thomas, 197 AD2d 649, 650 [1993]).
The defendant's contention that he was deprived of a fair trial because of certain remarksmade by the prosecutor during summation is unpreserved for appellate review, as defensecounsel did not object to some of the challenged remarks, made general one-word objections toothers, and did not move for a mistrial or request curative instructions when the objections weresustained (see People v Gillespie,36 AD3d 626, 627 [2007]; People v Eugene, 27 AD3d 480, 481 [2006]). In any event, thechallenged remarks were either fair comment on the evidence, permissive rhetorical comment, orresponsive to the defense counsel's summation (see People v Garner, 27 AD3d 764 [2006]; People v Filipe, 7 AD3d 539, 540[2004]).
The defendant was not denied his right to effective assistance of counsel (see People v Green, 41 AD3d 862,863 [2007], lv denied 9 NY3d 961 [2007]; People v Bethea, 34 AD3d 489 [2006]). Spolzino, J.P., Ritter,Covello and Dickerson, JJ., concur.