| People v James |
| 2010 NY Slip Op 03147 [72 AD3d 844] |
| April 13, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darryl James, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Howard McCallum of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin,J.), rendered August 14, 2007, convicting him of grand larceny in the fourth degree, criminalpossession of stolen property in the fourth degree, criminal trespass in the third degree, andpossession of burglar's tools, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
"At a suppression hearing, the prosecution has the initial burden of going forward withevidence to demonstrate the legality of the police conduct in the first instance" (People v Moses, 32 AD3d 866,868 [2006]; see People v Berrios, 28 NY2d 361, 367 [1971]; People v Thomas,291 AD2d 462, 463 [2002]). Since the description of the defendant, though limited, wasbroadcast to police units near the scene, the stop by the backup police unit that occurred atapproximately 4:00 a.m. at a distance of no more than four houses away from the crime sceneand within two minutes of the call by the witness to the 911 operator was, under the totality ofthe circumstances, justified (see Peoplev Hines, 46 AD3d 912 [2007]). The prosecution presented sufficient evidence toestablish that the defendant was lawfully stopped and detained before being identified by thecomplainant (see People v De Bour, 40 NY2d 210 [1976]). Accordingly, the SupremeCourt properly denied that branch of the defendant's omnibus motion which was to suppressidentification testimony (see People vBennett, 37 AD3d 483, 484 [2007]; People v Gil, 21 AD3d 1120, 1121 [2005]; People v Green, 10 AD3d 664[2004]; People v Holland, 4 AD3d375, 376 [2004]).
A challenge to the prosecutor's comments in summation concerning the defendant'scontention that he had found the money which the police discovered in his possession isunpreserved for appellate review, as the defendant failed to object to those remarks at the trial(see People v Boyce, 54 AD3d1052 [2008]; People v Philbert,60 AD3d 698 [2009]; People vDashosh, 59 AD3d 731 [2009]). In any event, the prosecutor's remarks either were faircomment upon the evidence or constituted a fair response to arguments presented in thesummation by defense counsel (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v White, 5 AD3d 511[2004]).[*2]
The failure of the defendant's attorney to object to theprosecutor's summation, seek curative instructions, or move for a mistrial did not constituteineffective assistance because counsel need not "make a motion or argument that has little or nochance of success" (People v Stultz,2 NY3d 277, 287 [2004]). The defendant was afforded meaningful representation (seePeople v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).Dillon, J.P., Santucci, Balkin and Sgroi, JJ., concur.