| People v Fernandez |
| 2010 NY Slip Op 07956 [78 AD3d 726] |
| November 3, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RubenFernandez, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.),rendered April 1, 2008, convicting him of robbery in the second degree, grand larceny in the fourthdegree, unlawful imprisonment in the first degree (two counts), and endangering the welfare of a child,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Demakos, J.H.O.), of those branches of the defendant's omnibus motion which were to suppressidentification evidence, his statements to law enforcement officials, and physical evidence.
Ordered that the judgment is affirmed.
The trial court providently exercised its discretion in precluding expert testimony concerning theeffects of stress on the accuracy of eyewitness identification and the absence of a correlation betweeneyewitness confidence and accuracy. "As a general rule, the admissibility and limits of expert testimonylie primarily in the sound discretion of the trial court. 'It is for the trial court in the first instance todetermine when jurors are able to draw conclusions from the evidence based on their day-to-dayexperience, their common observation and their knowledge, and when they would be benefited by thespecialized knowledge of an expert witness' " (People v Lee, 96 NY2d 157, 162 [2001],quoting People v Cronin, 60 NY2d 430, 433 [1983]), where the case hinges on the accuracyof eyewitness identification and there is little or no corroborative evidence connecting the defendant tothe crime (see People v LeGrand, 8NY3d 449, 452 [2007]; People vHarris, 74 AD3d 984 [2010]). Here, however, there was sufficient corroborating evidenceconnecting the defendant to the crime to obviate the need for expert testimony (see People v Abney, 13 NY3d 251,269 [2009]; People v Young, 7 NY3d40 [2006]; People v Lee, 96 NY2d 157 [2001]). The defendant was found shortly afterthe crime, in the vicinity of the crime, exiting the backyard of a home which he did not live in or own.He fled from the police, demonstrating consciousness of guilt, was identified independently by thecomplainant and an eyewitness, and made incriminatory statements.
The defendant further claims that the prosecutor's summation deprived him of a fair trial. Althoughthe defendant's challenges to some of the prosecutor's comments are unpreserved for appellate review,defense counsel preserved his objections to certain comments by the prosecutor, who argued that [*2]defense counsel was "wrong" when he purportedly accused thecomplainant and the eyewitness of lying because, during his summation, defense counsel stressed thatthese witnesses were traumatized and could be honestly mistaken. However, the trial court sustainedthose objections to the prosecutor's most troublesome comments and instructed the jury that commentsby the attorneys, and, more particularly, comments by the prosecutor to which objections were madeand sustained, were to be disregarded "completely." Any error resulting from the challenged commentswas harmless, since the evidence of the defendant's guilt was overwhelming and, in view of the trialcourt's corrective action, there is no significant probability that such error contributed to his convictions(see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Summa, 33 AD3d 735 [2006]).
Those branches of the defendant's omnibus motion which were to suppress identification evidence,his statements to law enforcement officials, and physical evidence were properly denied (see People v Parris, 70 AD3d 725[2010]; People v Schreiber, 250 AD2d 786 [1998]).
The defendant's remaining contentions set forth in his supplemental pro se brief are unpreserved forappellate review or involve matter dehors the record. Fisher, J.P., Santucci, Eng and Sgroi, JJ., concur.