| People v McDonald |
| 2011 NY Slip Op 02420 [82 AD3d 1125] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Reginald McDonald, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser,J.), rendered January 7, 2008, 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 that branchof the defendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his claims that a lineup was undulysuggestive because of the purported disparities in height and weight between himself and thefillers, or because of a detective's comment to a witness that the police had arrested someone(see CPL 470.05 [2]; People v Saunders, 306 AD2d 502 [2003]). In any event,our review of the photographs of the lineup establishes that the fillers sufficiently resembled thedefendant so as not to render the lineup unduly suggestive (see People v Saunders, 306AD2d at 503). Moreover, the detective's comment likewise did not render the lineup undulysuggestive (see People v Brennin, 184 AD2d 715, 716 [1992]). Inasmuch as the lineupwas not unduly suggestive, the defendant's contention that the Supreme Court should have heldan independent source hearing because of the alleged undue suggestiveness of the lineup iswithout merit (see People v Fields, 66 AD3d 799 [2009]; People v Brown, 47AD3d 826, 827 [2008]).
The defendant claims that the Supreme Court erred in refusing to continue the suppressionhearing to allow defense counsel to further examine the credibility of the detectives who testified.The record, however, reveals that, rather than requesting that the hearing be continued, defensecounsel merely urged the Supreme Court to closely examine the detectives' testimony and findthat it was not credible. Thus, the defendant's current claim finds no support in the record.
The defendant contends that the evidence of the lineup identification should have beensuppressed and that the Supreme Court erred by not conducting an independent source hearingbecause the police lacked probable cause to place him in the lineup in connection with the instantcharges. The defendant's claims are unpreserved for appellate review and, in any event, thecontentions are without [*2]merit, since the lineup was conductedwhile the defendant was in custody on an unrelated case (see People v Stevens, 44 AD3d882, 882-883 [2007]; People v Smith, 21 AD3d 386, 387 [2005]). The defendant alsocontends that he was deprived of his right to the effective assistance of counsel by counsel'sfailure to seek suppression of the lineup on the ground that the police did not have probablecause to place him in a lineup with respect to this case. That claim is without merit. Counsel isnot ineffective for having failed to make a motion or request that, were it made, ought to havebeen denied (see People v Caban, 5 NY3d 143, 152 [2005]). Moreover, based on our review of the record, we find that the defendant was notdeprived of his right to effective assistance of counsel (see Strickland v Washington, 466US 668 [1984]; People v Baldi, 54 NY2d 137, 147 [1981]).
By failing to move at trial to reopen the suppression hearing, the defendant failed to preservefor appellate review his current claim that trial testimony should have resulted in suppression ofcertain identification evidence (see People v Esquiled, 297 AD2d 687 [2002]; Peoplev Hossain, 298 AD2d 599, 600 [2002]). Moreover, the defendant's claim that the SupremeCourt should have reopened the suppression hearing sua sponte is without merit. As we observedin People v Velez (39 AD3d 38, 42 [2007]): "[T]he court has the discretion to reopen asuppression hearing if the defendant proffers new facts, which could not have been discoveredwith reasonable diligence before the determination of the motion, and which are pertinent to thesuppression issue (see People v Fuentes, 53 NY2d 892 [1981]). The new facts need not,on their face, establish a constitutional violation, but they must be such 'that they wouldmaterially affect or have affected the earlier [constitutional] determination' (People vClark, 88 NY2d 552, 555 [1996])." Here, the defendant failed to proffer such new facts at thetrial.
The defendant failed to preserve for appellate review his claims regarding the prosecutor'ssummation, inasmuch as he did not object to the particular remarks at issue, made only generalone-word objections (see People v Salnave, 41 AD3d 872, 874 [2007]), or failed to seekcurative instructions or a mistrial when the Supreme Court sustained the objections (seePeople v Muniz, 44 AD3d 1074 [2007]; People v White, 5 AD3d 511 [2004]). In anyevent, the challenged remarks in the prosecutor's summation were either fair comment on theevidence, responsive to the arguments presented in defense counsel's summation (see Peoplev Montalvo, 34 AD3d 600, 601 [2006]), reasonable inferences drawn from the evidence(see People v Bowman, 58 AD3d 747, 748 [2009]), or within the broad bounds ofpermissible rhetorical comment (see People v Torres, 71 AD3d 1063 [2010]).
The defendant's general motion for a trial order of dismissal was insufficient to preserve forappellate review his current claims as to the legal sufficiency of the evidence (see CPL470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that the evidence was legally sufficient to establish the defendant'sguilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
The defendant's remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal andSgroi, JJ., concur.