| People v Alcantara |
| 2010 NY Slip Op 07949 [78 AD3d 721] |
| November 3, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v QuiryAlcantara, Appellant. |
—[*1]
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman, J.),rendered March 20, 2008, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Tomei, J.), of thatbranch of the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
"The primary purpose of a CPL 710.30 notice is to alert the defendant to the possibility thatevidence identifying him [or her] as the person who committed the crime may be constitutionally taintedand subject to a motion to suppress" (People v Sigue, 300 AD2d 414, 415 [2002] [internalquotation marks omitted]; see People v Collins, 60 NY2d 214, 219 [1983]; People vPannell, 287 AD2d 659 [2001]). Here, the defendant received a pretrial hearing which included anexploration of the eyewitness's photo array identification. Thus, any insufficiency in the CPL 710.30notice in connection with the photo array identification did not require preclusion (see People vKirkland, 89 NY2d 903 [1996]; Peoplev Sepulveda, 40 AD3d 1014 [2007]; People v Sigue, 300 AD2d at 415; Peoplev Berry, 242 AD2d 540 [1997]). In any event, any deficiency in the CPL 710.30 notice washarmless, as there was overwhelming evidence of the defendant's guilt, and no significant probabilitythat any error contributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242[1975]).
Contrary to the defendant's contentions, it was proper to permit the prosecutor to elicit testimonyfrom an eyewitness that she had lied during her first grand jury testimony (see People v Minsky,227 NY 94, 98 [1919]). It was necessary for the prosecutor to elicit this information from the witnessto mitigate the more damaging effect it would have had if elicited on cross-examination by defensecounsel, and to give the witness an opportunity to explain why she had previously lied (see People vGuy, 223 AD2d 723 [1996]). Moreover, it was proper to permit the prosecutor to elicit from thatwitness the fact that she had been threatened just five days before her first grand jury testimony, andthat she was afraid. Such testimony was relevant to the witness's state of mind, and explained why shehad lied on that occasion (see People vJean-Baptiste, 51 AD3d 1037, 1038 [2008]; People v Rose, 41 AD3d 742, 742-743 [2007]; People vSawyer, 288 AD2d 73 [2001]).[*2]
The sentence imposed was not excessive (see People vSuitte, 90 AD2d 80, 85-86 [1982]). Mastro, J.P., Fisher, Leventhal and Belen, JJ., concur.