| People v Vasquez |
| 2011 NY Slip Op 06499 [87 AD3d 1042] |
| September 13, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel Vasquez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Emil Bricker,Sharon Y. Brodt, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered January 23, 2008, convicting him of attempted robbery in the first degree, criminalpossession of a weapon in the third degree, and menacing in the second degree, upon a juryverdict, and imposing sentence.
Ordered that upon the appeal from the judgment, so much of the order of protection asdirected that it remain in effect until January 8, 2026, is vacated, on the law, and the matter isremitted to the Supreme Court, Queens County, for a new determination of the duration of theorder of protection, taking into account the maximum time allowed for the duration of an orderof protection pursuant to the law in effect at the time of the offense and the defendant's jail-timecredit; and it is further,
Ordered that the judgment is affirmed.
The defendant was indicted on July 19, 2007, for attempted robbery in the first degree,menacing in the second degree, and criminal possession of a weapon in the third and fourthdegrees, in connection with an incident which occurred in Queens on July 4, 2007.
During the jury trial, the complainant testified that, on the night in question, while walkingon the street where a furniture store, at which he was employed, was located, he was accosted bya man with a knife, who demanded money. The complainant fled to the nearby furniture storeand called the 911 emergency number while he observed the man pacing outside on the streetuntil the police arrived 8 to 10 minutes later.
The police apprehended the defendant after the complainant pointed the defendant out tothem. Before placing the defendant under arrest, one of the officers returned with the defendantto where the complainant was located, and the complainant confirmed that the defendant was theassailant.[*2]
At trial, about six months after the incident occurred, thecomplainant was unable to identify the defendant in court. As a result, the trial court permittedone of the responding police officers to testify that the complainant had pointed the defendant outto the police upon their arrival at the furniture store. Prior to the trial, the prosecution hadprovided notice pursuant to CPL 710.30 to the defendant of its intention to introduce suchidentification evidence. However, the prosecution did not provide notice of its intention tointroduce evidence about the complainant's showup identification at the time of the defendant'sarrest. Nevertheless, at trial, the officer was also permitted to testify about the complainant'sshowup identification.
The defendant's contention that he was deprived of due process of law because testimonyregarding the complainant's identification of him at a showup was admitted at trial despite theprosecution's failure to serve notice pursuant to CPL 710.30 of its intention to introduce evidenceof this identification is unpreserved for appellate review (see CPL 470.05 [2]; Peoplev Bello, 219 AD2d 657 [1995]). In any event, although the trial court may have erred inadmitting the showup identification testimony on the ground that the prosecution did not serveadequate notice pursuant to CPL 710.30 (1) (b), any such error was harmless (see People vCrimmins, 36 NY2d 230, 237 [1975]).
The defendant's contention that he was deprived of the right to a fair trial by the People's useof a transcript of a translation of the complainant's phone call to "911" is unpreserved forappellate review (see CPL 470.05 [2]) and, in any event, is without merit.
The defendant was not deprived of the effective assistance of counsel, as defense counselprovided meaningful representation (see People v Benevento, 91 NY2d 708, 711 [1998];People v Baldi, 54 NY2d 137 [1981]).
The defendant's contention that he was deprived of a fair trial by certain remarks made by theprosecutor during summation is unpreserved for appellate review (see CPL 470.05 [2];People v Romero, 7 NY3d 911,912 [2006]; People v Tonge, 93 NY2d 838, 838-839 [1999]). In any event, thechallenged remarks did not deprive the defendant of a fair trial (see People v Galloway,54 NY2d 396, 399 [1981]; People vWest, 86 AD3d 583 [2011]; People v Gabriel, 85 AD3d 1201 [2011]; People v Spinelli, 79 AD3d 1152[2010]). The defendant's remaining contention with respect to the admission of the show-up identification testimony pursuant to CPL 60.25 is without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83-85[1982]).
As correctly argued by the defendant and conceded by the People on appeal, the duration ofthe order of protection issued at the time of sentencing exceeded the maximum time limit of CPL530.13 (4) and failed to take into account the defendant's jail-time credits. Accordingly, thematter must be remitted to the Supreme Court, Queens County, for a new determination of theduration of the order of protection, taking into account the maximum time allowed for theduration of an order of protection pursuant to the law in effect at the time of the offense and thedefendant's jail-time credit. Rivera, J.P., Skelos, Hall and Austin, JJ., concur.
[As Amended, see 2012 NY Slip Op 61253(U).]