| People v Harris |
| 2010 NY Slip Op 05022 [74 AD3d 984] |
| June 8, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Victor Harris, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaumof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered July 31, 2007, convicting him of robbery in the second degree (two counts), upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the trial court's Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) is without merit. The defendant failed to meet his burden ofdemonstrating that the prejudicial effect of the evidence of his prior robbery convictions sooutweighed the probative worth of that evidence that exclusion was warranted (see People vSandoval, 34 NY2d at 378; Peoplev Springer, 13 AD3d 657, 658 [2004]). "Convictions involving theft, such as robbery,are highly relevant to the issue of credibility because they demonstrate the defendant'swillingness to deliberately further his [or her] self-interest at the expense of society" (Peoplev Creel, 215 AD2d 577, 578 [1995]; see People v Torres, 12 AD3d 539, 540 [2004]; People v Telesford, 2 AD3d 757,757 [2003]). Moreover, the mere fact that the prior crimes were similar or even identical innature to the instant offenses did not warrant their preclusion (see People v White, 60 AD3d1095, 1096 [2009]; People vFotiou, 39 AD3d 877, 878 [2007]), and the defendant is not shielded from impeachmentbecause he chose to specialize in one type of criminal activity (see People v Springer, 13AD3d at 657; People v Sokolov, 245 AD2d 317, 318 [1997]).
The defendant argues that the trial court improvidently exercised its discretion in denyingthat branch of his motion which was to introduce expert testimony on the effects of extremestress on the accuracy of eyewitness identification. "As a general rule, the admissibility. . . of expert testimony lie[s] primarily in the sound discretion of the trial court[and] '[i]t is for the trial court . . . to determine when jurors are able to drawconclusions from the evidence based on their day-to-day experience, their common observationand their knowledge, and when they would be benefited by the specialized knowledge of anexpert witness' " (People v Lee, 96 NY2d 157, 162 [2001], quoting People vCronin, 60 NY2d 430, 433 [1983]). More recently, in People v LeGrand (8 NY3d 449, 452 [2007]), the Court of Appealsheld that "where the case turns on the accuracy of eyewitness identifications and there is little orno corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for atrial court to exclude expert testimony on the reliability of eyewitness identifications if thattestimony is (1) relevant to the witness's [*2]identification ofdefendant, (2) based on principles that are generally accepted within the relevant scientificcommunity, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the averagejuror."
In this case, the trial court granted the defendant's motion to the extent of allowing experttestimony on the effects of cross-racial identification, exposure duration, and a lineupadministrator's knowledge of the suspect's identity on eyewitness identification reliability,despite noting that the defendant's moving papers lacked a proper foundation for the requestedrelief. To the extent that the trial court limited the expert testimony regarding the effects ofextreme stress on the accuracy of eyewitness identification (see People v Lee, 96 NY2dat 162), the error was harmless (see People v Crimmins, 36 NY2d 230 [1975]).
With respect to certain remarks made by the prosecutor during his summation and objectedto by defense counsel, any prejudice to the defendant was cured by the trial court's sustaining ofthose objections (see People vLewis, 72 AD3d 705 [2010]; see generally People v Arce, 42 NY2d 179, 187[1977]). With respect to the remaining prosecutorial remarks challenged by the defendant, hiscontentions are unpreserved for appellate review because he failed to raise any objection to thoseremarks (see People v Siriani, 27AD3d 670 [2006]; People vMartinez, 17 AD3d 484, 485 [2005]). In any event, those remarks constituted faircomment on the evidence adduced at trial or a fair response to defense counsel's summation(see People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d105 [1976]; People v Diaz, 59AD3d 459, 459-460 [2009]; Peoplev Lawson, 40 AD3d 657, 658 [2007]). Since those remarks were not improper, defensecounsel's failure to raise specific objections to them could not have deprived the defendant ofmeaningful representation (see People vFriel, 53 AD3d 667, 668 [2008]; People v Rose, 47 AD3d 848, 849 [2008]).
The defendant's remaining contentions are without merit. Mastro, J.P., Eng, Leventhal andRoman, JJ., concur.