| People v Morrison |
| 2009 NY Slip Op 01142 [59 AD3d 569] |
| February 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dwayne Morrison, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.),rendered July 10, 2007, convicting him of murder in the second degree and criminal possessionof a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing, of that branch of the defendant's omnibus motion whichwas to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the record of the Rodriguez hearing (seePeople v Rodriguez, 79 NY2d 445 [1992]) supports the hearing court's determination thatthe witness was impervious to police suggestion, and thus that his identification of the defendantwas confirmatory (see People vTomlin, 41 AD3d 620, 621 [2007]; People v Garner, 27 AD3d 764 [2006]; People v Jenkins,230 AD2d 806, 807 [1996]).
The defendant's claims that he was denied a fair trial because the prosecutor made improperremarks during his opening statement and summation are unpreserved for appellate review,except his claim that the prosecutor shifted the burden of proof during summation (seeCPL 470.05 [2]). With respect to that preserved issue, the court clearly and correctlyinstructed the jury that the burden of proof remained with the People and did not shift to thedefendant (see People v Grant, 54AD3d 872 [2008]; People vFarino, 21 AD3d 427 [2005]; People v Howe, 292 AD2d 542 [2002]). In anyevent, the challenged remarks either were fair comment on the evidence, permissible rhetoricalcomment, or responsive [*2]to defense counsel's summation (see People v Martin, 54 AD3d776 [2008]; People v Garcia,52 AD3d 734 [2008]).
The defendant's remaining contentions either are without merit or do not require reversal.Rivera, J.P., Angiolillo, Carni and McCarthy, JJ., concur.