| People v Parham |
| 2010 NY Slip Op 05587 [74 AD3d 1237] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Charles Parham, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Lori Glachman, andMelissa J. Feldman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers,J.), rendered June 9, 2005, convicting him of murder in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of thosebranches of the defendant's omnibus motion which were to suppress identification testimony, hisstatements to law enforcement officials, and physical evidence.
Ordered that the judgment is affirmed.
The hearing court correctly determined that the defendant was lawfully arrested after hissister consented to the entry of detectives into her home, where the defendant was apprehendedafter he was discovered hiding under a bed (see Payton v New York, 445 US 573 [1980];People v Reynoso, 309 AD2d 769, 770 [2003], affd 2 NY3d 820, 821 [2004]).
The defendant's contentions that a photo array shown by a detective to a witness and lineupsconducted by the detective were impermissibly suggestive are without merit (see People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People vHoward, 50 AD3d 823 [2008]; People v McFadden, 36 AD3d 631 [2007];People v Sumpter, 27 AD3d 590 [2006]; People v Ragunauth, 24 AD3d 472[2005]). The defendant's contention with respect to the identification made by one of thedeceased victim's children impermissibly relies on trial testimony, and the defendant did notmove to reopen the Wade hearing (see United States v Wade, 388 US 218[1967]; People v Abrew, 95 NY2d 806, 808 [2000]; People v Nunez, 55 AD3d756, 757 [2008]; People v Maxis, 50 AD3d 922, 923 [2008]).
The hearing court correctly denied those branches of the defendant's omnibus motion whichwere to suppress his statements to law enforcement officials and physical evidence (seePeople v McNeil, 47 AD3d 647 [2008]; People v Holland, 268 AD2d 536, 537[2000]; People v Baker, 208 AD2d 758, 759 [1994]). The defendant's contentions withrespect to whether certain identification testimony was confirmatory in nature is without merit(see People v Rodriguez, 79 NY2d 445, 449-451 [1992]; People v Kelly, 67AD3d 706, 707 [2009]).[*2]
The trial court did not err in precluding the testimony ofa defense witness whose only purpose was to impeach the credibility of a prosecution witness oncollateral matters (see People v Aska, 91 NY2d 979 [1998]; People v Fortune, 70AD3d 964 [2010]; People v Fowler, 61 AD3d 698 [2009]; People v Alexander,16 AD3d 515 [2005]).
The trial court's delivery of a prompt curative instruction regarding improper commentsmade by a prosecution witness, a former assistant district attorney, was sufficient to protect thedefendant's rights, and the trial court providently exercised its discretion in denying thedefendant's motion for a mistrial on the ground that the testimony served to vouch for thecredibility of a witness who testified for the prosecution (see People v Smith, 23 AD3d415 [2005]; People v Straker, 301 AD2d 667 [2003]). In any event, any error withrespect to the testimony was harmless, as the proof of the defendant's guilt, without reference tothe error, was overwhelming, and there was no significant probability that the jury would haveacquitted the defendant had it not been for the admission of the testimony (see People vGillyard, 13 NY3d 351 [2009]; People v Crimmins, 36 NY2d 230 [1975]; Peoplev Malloy, 11 AD3d 484, 485 [2004]; see also People v James, 162 AD2d 618, 619[1990]). The trial court also properly denied the defendant's motion for a mistrial on doublejeopardy grounds (see People v Catten, 69 NY2d 547, 553-555 [1987]; People vSonds, 287 AD2d 319, 320 [2001]).
The defendant's contention that the evidence was legally insufficient to establish his guiltbeyond a reasonable doubt is unpreserved for appellate review (see CPL 290.10, 470.05[2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt.
The defendant's contentions with respect to the testimony of a witness who refuted thedefendant's alibi, and the prosecutor's summation comments with respect to that testimony, areunpreserved for appellate review and, in any event, are without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Florio, Miller andAustin, JJ., concur.