| People v Banks |
| 2010 NY Slip Op 05572 [74 AD3d 1214] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andre Banks, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered October 9, 2007, convicting him of murder in the first degree, attemptedmurder in the first degree (three counts), assault in the first degree (two counts), robbery in thefirst degree, and reckless endangerment in the first degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The County Court providently exercised its discretion in precluding, after a Fryehearing (see Frye v United States, 293 F 1013 [1923]), expert testimony on theeffects of stress and cross-race bias on eyewitness identification. The defendant failed to meethis burden of establishing that the proposed testimony was based on principles that are generallyaccepted in the scientific community (see People v LeGrand, 8 NY3d 449, 452 [2007]).
The defendant's contention that he was deprived of a fair trial by certain remarks made bythe prosecutor during summation is unpreserved for appellate review, as the defendant eitherfailed to object to the comments or made only general objections, and did not request furthercurative instructions or move for a mistrial (see CPL 470.05 [2]; People vMitchell, 68 AD3d 784, 785 [2009]). In any event, the challenged remarks were faircomment on the evidence, permissible rhetorical comment, or responsive to defense counsel'ssummation (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People vMontgomery, 160 AD2d 657 [1990]).
The County Court also providently exercised its discretion in declining to impose anysanction against the People for the loss of alleged Rosario material (see People vRosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]). The defendant failedto articulate a factual basis for the assertion that the alleged Rosario material existed(see People v Young, 61 AD3d 786 [2009]; People v Brown, 286 AD2d 340, 341[2001]; People v Rodriguez, 270 AD2d 505 [2000]).
Contrary to the defendant's contention, it was not improper for the prosecutor to elicit [*2]testimony on redirect examination that the witness had previouslyidentified the defendant from a photographic array. Such testimony is appropriate when, as here,the defendant opens the door to this type of inquiry during cross-examination of the witness(see People v Hamilton, 33 AD3d 937, 938 [2006]; People v Jackson, 240 AD2d680 [1997]; People v Marrero, 117 AD2d 626 [1986]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's remaining contentions, including those raised in his supplemental pro sebrief, are without merit. Rivera, J.P., Balkin, Leventhal and Roman, JJ., concur.