| People v Dunbar |
| 2010 NY Slip Op 05581 [74 AD3d 1227] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TonyDunbar, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob ofcounsel; Jason Lederman on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach,J.), rendered August 15, 2007, convicting him of attempted murder in the second degree andcriminal possession of a weapon in the second 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 identification evidence.
Ordered that the judgment is affirmed.
The defendant, who testified at trial that he was formerly a member of the "Bloods" streetgang, was convicted of shooting the complainant multiple times after confirming that thecomplainant was a member of the "Crips" street gang. The complainant identified the defendantin a photo array and at a lineup. The complainant also identified the shooter as having been in awheelchair at the time of the shooting.
The defendant was not deprived of a fair trial by the Supreme Court permitting theprosecutor to elicit testimony that the defendant had previously been shot and therefore had beenutilizing a wheelchair during the time period when the shooting took place. Despite a stipulationon the record that the defendant had been periodically utilizing a wheelchair during the time ofthe shooting, the defendant testified that he had stopped utilizing a wheelchair a week and a halfprior to the shooting. The prosecutor was properly allowed to rebut the defendant's testimony oncross-examination. By eliciting testimony that the defendant had previously been shot, theprosecutor did not present any evidence of an uncharged crime or bad act of the defendant(cf. People v Hudy, 73 NY2d 40, 54 [1988]; People v Alvino, 71 NY2d 233, 241[1987]). The probative value of this testimony outweighed the potential prejudicial effect(see generally People v Giuca, 58 AD3d 750 [2009]). Furthermore, to the extent that theprosecutor attempted to establish that the prior shooting was gang-related, this was particularlyrelevant to prove motive, intent, and the relationship between the defendant and the complainant(see People v Ramirez, 23 AD3d 500 [2005]; People v Oliver, 19 [*2]AD3d 512 [2005]). The prosecutor's summation remarksconcerning the prior shooting constituted fair comment on the evidence or fell within the broadbounds of rhetorical comment, and were not so pervasive as to have exceeded all permissiblebounds (see generally People v Torres, 71 AD3d 1063 [2010]; cf. People vCorreal, 160 AD2d 85 [1990]).
The defendant's claim that it was error for the Supreme Court to have allowed the prosecutorto elicit testimony that the police had learned the name "Tony" during the investigation iswithout merit. That testimony explained the course of events during the investigation and therewas no testimony that a witness actually implicated the defendant as the perpetrator (seePeople v Tucker, 54 AD3d 1065 [2008]; People v Carrieri, 49 AD3d 660, 662[2008]; People v Reynolds, 46 AD3d 845 [2007]; People v Nicholas, 1 AD3d614 [2003]; cf. People v Latta, 295 AD2d 449 [2002]).
The defendant challenges the prosecutor's summation remarks concerning his assertion thathe was not in a wheelchair at the time of the shooting and further contends that the prosecutorimproperly vouched for the testimony of police witnesses during summation. However, to theextent the prosecutor's remarks were improper, they were "not so flagrant or pervasive as to denythe defendant a fair trial" (People v Almonte, 23 AD3d 392, 394 [2005]; see People vRoopchand, 107 AD2d 35, 36-37 [1985]), and thus reversal is not warranted (see Peoplev Almonte, 23 AD3d at 394).
The defendant's claim that he was denied the effective assistance of counsel because his trialcounsel failed to investigate and call witnesses for the defense is based upon matters dehors therecord and, as such, is not properly presented on direct appeal (see People v Haynes, 39AD3d 562, 564 [2007]). The defendant's additional claims of ineffective assistance of counselare without merit (see People v Washington, 71 AD3d 1064 [2010]).
The defendant's claim that the lineup procedure was unduly suggestive because he was theonly participant wearing a striped shirt is without merit. There was nothing to suggest that thelineup procedure created a substantial likelihood that the defendant would be singled out foridentification (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498US 833 [1990]).
It was error for the Supreme Court to permit the prosecutor to elicit testimony regarding thedefendant's former nicknames when he was a member of the "Bloods." However, any error washarmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the error contributed to his convictions (see People v Crimmins, 36NY2d 230, 241-242 [1975]; cf. People v Heman, 198 AD2d 434, 435 [1993]). Mastro,J.P., Florio, Belen and Roman, JJ., concur.