| People v Houston |
| 2011 NY Slip Op 02417 [82 AD3d 1122] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tommy L. Houston, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered July 1, 2009, convicting him of assault in the second degree, assault in the third degree,and reckless endangerment in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant contends that the in-court identification testimony of three police witnessesshould have been suppressed as tainted by an unduly suggestive pretrial identification procedure,during which they separately identified the defendant from a single photograph. An in-courtidentification is admissible notwithstanding a procedurally defective pretrial identificationprocedure if the People establish by clear and convincing evidence that the identification is basedupon the witness's independent observation of the defendant during the commission of the crime(see People v Marte, 12 NY3d 583, 586 [2009], cert denied 559 US —,130 S Ct 1501 [2010]; People v Adelman, 36 AD3d 926, 927 [2007]). Here, the Peopleestablished that, based on the duration and nature of the police officers' encounter with thedefendant, their in-court identification testimony was reliably based upon their independentobservations of the defendant.
The defendant's contention that the evidence was legally insufficient to establish his identityis unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish every element of each crime of which he was convicted beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People v Romero, 7 NY3d 633 [2006]).[*2]
The defendant's contentions that certain remarks made bythe prosecutor during summation mischaracterized his testimony and improperly attacked hiscredibility and vouched for the credibility of the police witnesses, are unpreserved for appellatereview because he failed to request additional relief when the County Court sustained hisobjections and gave curative instructions (see CPL 470.05 [2]; People v Heide,84 NY2d 943, 944 [1994]). The defendant's contention that another remark made by theprosecutor introduced extraneous material is also unpreserved for appellate review, because thedefendant did not object on this ground (see CPL 470.05 [2]; People v West, 56NY2d 662, 663 [1982]). In any event, reversal is not warranted since the prosecutor's remarks,singly or in combination, did not deprive the defendant of a fair trial (see People vDamon, 78 AD3d 860, 861 [2010]; People v Garcia-Villegas, 78 AD3d 727, 728[2010], lv denied 15 NY3d 953 [2010]), especially in light of the County Court's propercurative instructions (see People v Ferguson, 82 NY2d 837 [1993]; People vValerio, 70 AD3d 869, 869-870 [2010]). Angiolillo, J.P., Florio, Belen and Miller, JJ.,concur.