| People v Mack |
| 2012 NY Slip Op 00390 [91 AD3d 794] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kaywon Mack, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross,Daniel A. Spitzer, and Kevin Osowski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered June 2, 2010, convicting him of robbery in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The complainant was robbed by several individuals while riding on a subway train shortlyafter 3:30 a.m. on May 25, 2009. The complainant testified that he, the defendant, and the otherperpetrators were the only ones in the brightly lighted subway car, and that he initially saw thedefendant at eye level from less than 10 feet away. The complainant further testified that, after heobserved the men for a few minutes, the defendant began to swing from the bars mounted on theceiling of the subway car, and then "hoisted himself up on the bars, brought his knees to his chest. . . and then kicked [me] in the chest." Thereafter, the defendant and another manrepeatedly punched the complainant in the head, and one of them took his wallet and cell phone.The wallet contained, inter alia, the complainant's "California ID," two health insurance cards,and a social security card. After a few minutes, the subway train stopped at a station, whereuponthe complainant ran from the train and notified a station attendant, who called the police. Thedefendant was arrested approximately 12 hours later. Incident to his arrest, the police searchedthe defendant and recovered the complainant's "California ID," social security card and insurancecards, and a small razor blade.
At a pretrial Wade hearing (United States v Wade, 388 US 218 [1967]), adetective testified that the complainant viewed a lineup which included the defendant. To concealthe defendant's cornrow hairstyle as a characteristic that would distinguish him from the fillers,all lineup participants wore baseball caps. The participants were also seated to concealdifferences in height. Most of the participants wore dark or blue sweatshirts, although one of thefillers wore a white T-shirt. The defendant was wearing blue shorts and a red T-shirt which hadbeen turned inside-out to hide a distinguishing design. The complainant identified the defendantas one of the people who attacked him on the subway train. The Supreme Court denied thedefendant's motion to suppress the lineup identification, finding that the lineup was not undulysuggestive. At trial, the complainant testified that he had mentioned to the investigating detectivethat the defendant was wearing a red [*2]T-shirt during therobbery. This testimony had not been adduced at the Wade hearing. The defendant wasconvicted of robbery in the second degree.
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel by his trial counsel's decision not to move to reopen the Wade hearing uponhearing the complainant's testimony about the defendant's red shirt. "A lawyer is not ineffectivefor failing to make a motion that is unlikely to succeed" (People v Ennis, 41 AD3d 271, 274 [2007], affd 11 NY3d403 [2008], cert denied 556 US —, 129 S Ct 2383 [2009]). Although the defendantwore a red shirt during the robbery and during the subsequent police lineup, this did not renderthe lineup unduly suggestive, because the shirt was not so distinctive as to draw attention to thedefendant, the four fillers otherwise resembled the defendant, and the witness testified that hefocused on the defendant's face, not his clothes (see People v Santos, 250 AD2d 413,413-414 [1998], cert denied 525 US 1076 [1999]). The police also took the extraprecaution of making the defendant turn his shirt inside-out to hide a distinguishing design. Inaddition, the complainant had ample time in the well-lit subway car to observe the defendant atclose range, and he stated that he was "150 percent certain" of his identification (see generallyPeople v Crimmins, 36 NY2d 230 [1975]). Accordingly, the defendant was not deprived ofmeaningful representation by defense counsel's decision not to move to reopen the Wadehearing (see generally People vTaylor, 1 NY3d 174, 176 [2003]).
The Supreme Court improvidently exercised its discretion in allowing the People tointroduce testimony that a small razor blade was found in the defendant's pocket when he wasarrested. Contrary to the People's contention, the razor blade was not probative of the issue ofwhether the defendant was acting in concert with others (cf. People v Carter, 77 NY2d95, 100, 107 [1990], cert denied 499 US 967 [1991]), and it was not necessary tocomplete the narrative (see generally People v Ventimiglia, 52 NY2d 350, 361 [1981]).Nevertheless, under all of the circumstances, such error was harmless, as there wasoverwhelming evidence of the defendant's guilt, and no significant probability that the errorcontributed to his conviction (see Peoplev Arafet, 13 NY3d 460, 467-468 [2009]). In particular, the police officers whorecovered the razor blade testified that they disposed of it because it was not big enough tocharge the defendant with a crime, thus minimizing any possible prejudice.
The defendant's contention that some of the prosecutor's summation comments wereimproper is unpreserved for appellate review (see CPL 470.05 [2]; People v Banks, 74 AD3d 1214,1215 [2010]), and we decline to exercise our interest of justice jurisdiction to review thiscontention (see CPL 470.15; People v Smith, 261 AD2d 423 [1999]). Rivera,J.P., Roman, Sgroi and Cohen, JJ., concur.