| People v Clanton |
| 2010 NY Slip Op 00276 [69 AD3d 754] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Clanton, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Rebecca Height of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella,J.), rendered March 12, 2007, convicting him of burglary in the first degree (two counts),robbery in the first degree (four counts), criminal possession of a weapon in the second degree,and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The prosecutor improperly elicited testimony from the arresting officers which bolstered thecomplainants' testimony by providing official confirmation of their identifications of thedefendant (see People v Trowbridge, 305 NY 471 [1953]; People v German, 45 AD3d 861,862 [2007]; People v Ambrose, 147 AD2d 577 [1989]). However, the admission of thebolstering testimony was harmless because the evidence of the defendant's guilt, withoutreference to the error, was overwhelming and there was no significant probability that, but forthe error, the jury would have acquitted the defendant (see People v Johnson, 57 NY2d969, 970 [1982]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Garrett, 62 AD3d 899,900 [2009]; People v Capehart, 60AD3d 689 [2009]; People vGerman, 45 AD3d 861, 862 [2007]).
The defendant's contention that the Supreme Court should have re-opened the suppressionhearing based on certain trial testimony is unpreserved for appellate review because he did notseek this relief (see People v Hossain, 298 AD2d 599 [2002]). Furthermore, havingfailed to move to re-open the hearing, the defendant may not rely upon trial testimony tochallenge the suppression ruling (seePeople v Nunez, 55 AD3d 756 [2008]; People v Crosby, 33 AD3d 719, 720 [2006]; People v Gold,249 AD2d 414, 415 [1998]).
The prosecutor's summation remarks regarding the statement made by the defendant after thepolice removed a gun from his pocket, and the defendant's unexplained possession of thecomplainants' property, constituted fair comment on the evidence (see People v Ashwal,39 NY2d 105, 109 [1976]; People[*2]v O'Diah, 68 AD3d 788 [2009]; People v Scrimo, 67 AD3d 825[2009]). The defendant's claim that certain additional summation comments were improper isunpreserved for appellate review (see CPL 470.05 [2]; People v Garcia, 66 AD3d 699[2009]). In any event, all but one of the remarks now claimed to have been improper were faircomment on the evidence or responsive to the defense summation (see People v Galloway,54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d at 109; People v O'Diah, 68 AD3d 788[2009]; People v Garcia, 66 AD3d699 [2009]; People v Smalls,65 AD3d 708 [2009]) and the remaining challenged remark constituted harmless error(see People v Crimmins, 36 NY2d at 241-242; People v Scrimo, 67 AD3d 825 [2009]; People v Clarke, 65 AD3d 1055[2009]).
The remaining contentions raised in the defendant's supplemental pro se brief regarding theprosecutor's alleged failure to disclose witness statements and correct allegedly false testimonyare unpreserved for appellate review and, in any event, are without merit.
The defendant's remaining contentions are without merit. Fisher, J.P., Miller, Eng and Hall,JJ., concur.