| People v Franklin |
| 2009 NY Slip Op 05792 [64 AD3d 614] |
| July 7, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Steven Franklin, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.),rendered November 13, 2006, convicting him of assault in the first degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress identification testimony. Contrary to the defendant's contention, the evidencepresented by the People demonstrated that the police had probable cause to arrest him (seeCPL 140.10 [1] [b]; People v Parris, 83 NY2d 342, 349 [1994]; People v Maldonado, 55 AD3d626 [2008]). Furthermore, the lineup in which defendant participated was not undulysuggestive (see People v Jean-Baptiste,57 AD3d 566 [2008]; People vCusimano, 48 AD3d 475 [2008]). The defendant's physical characteristics weresufficiently similar to those of the other participants in the lineup as to negate any likelihood thatthe defendant would be singled out for identification (see People v Jean-Baptiste, 57AD3d at 566; see also People vMarshall, 51 AD3d 821 [2008]).
The defendant's contention that various comments made by the prosecutor during hissummation were improper and denied him a fair trial is unpreserved for appellate review, as thedefendant either did not object to the remarks at issue or made only general objections, or hisobjections were sustained without any further request for curative instructions, and he failed tomove for a mistrial (see People vPhilbert, 60 AD3d 698, 699 [2009]; People v Dashosh, 59 AD3d 731 [2009], lv denied 12NY3d 852 [2009]; People v Boyce,54 AD3d 1052, 1053 [2008]). In any event, most of the challenged remarks constitutedfair comment on the evidence or were responsive to defense counsel's summation (see Peoplev Philbert, 60 AD3d at 699; Peoplev Nisvis, 56 AD3d 574 [2008]; People v Forest, 52 AD3d 733 [2008]). To the extent that certainof the remarks were improper, they were not so egregious as to deprive the defendant of a fairtrial (see People v Philbert, 60 AD3d at 698; People v Nisvis, 56 AD3d at 574).
The defendant's remaining claims of prosecutorial misconduct are unpreserved for appellatereview (see People v Daley, 50AD3d 1051 [2008]) and, in any event, are without merit.[*2]
The defendant's remaining contentions are without merit.Mastro, J.P., Dickerson, Eng and Hall, JJ., concur.