| People v Garcia |
| 2008 NY Slip Op 08421 [56 AD3d 271] |
| November 6, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Derrick Garcia, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered May 31, 2007,convicting defendant, after a jury trial, of murder in the second degree and criminal possession ofa weapon in the second degree, and sentencing him to an aggregate term of 25 years to life,unanimously affirmed.
Defendant opened the door to the admission of testimony about a photographic identification(see People v Massie, 2 NY3d 179 [2004]; People v Cruz, 249 AD2d 136 [1998],lv denied 92 NY2d 924 [1998]; People v Mahone, 206 AD2d 263 [1994], lvdenied 84 NY2d 869 [1994]). Defendant's cross-examination of the identifying witness and adetective did not simply cast doubt on the reliability of the witness's in-court identification, butcreated the misimpression that the witness could not identify defendant at all, that the policeconsequently did not conduct any identification procedure involving this witness, and that thewitness identified defendant in court only because he was sitting at the defense table. We haveconsidered and rejected defendant's remaining arguments on this issue, including his claim thathe was unfairly surprised by the prosecutor's application to introduce the photo identification.
The court responded meaningfully to notes from the deliberating jury (see People vAlmodovar, 62 NY2d 126, 131 [1984]; People v Malloy, 55 NY2d 296, 301-302[1982], cert denied 459 US 847 [1982]). Any delay in responding to the jury's notes wasoccasioned by the lack of clarity of the requests and the extensive discussions between the partiesand the court regarding the appropriate responses. Although the court directed readbacks oftestimony that were somewhat broader than the precise information requested by the jury, thiswas appropriate because the additional information clarified confusing testimony and provided acomplete answer to the jury's inquiries. Defendant has not established that he was prejudicedeither by the delay or by the content of the readback (see People v Agosto, 73 NY2d 963,966 [1989]; People v Lourido, 70 NY2d 428, 435 [1987]; People v Perez, 15 AD3d 284[2005], lv denied 4 NY3d 834 [2005]).
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The evidence established a[*2]lawful automobile stop, based on a sufficient description ofthe car and its occupants. Concur—Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta,JJ.