| People v Bowen-Allen |
| 2012 NY Slip Op 05432 [97 AD3d 598] |
| July 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Bowen-Allen, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Gretchen Robinson of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered June 1, 2010, convicting him of burglary in the second degree, petit larceny, criminalpossession of stolen property in the fifth degree, and criminal possession of marijuana in the fifthdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing (Kohm, J.), of that branch of the defendant's omnibus motion which was tosuppress physical evidence and identification testimony.
Ordered that the judgment is affirmed.
The defendant's present contentions that he was arrested without probable cause and that theshowup identifications made by two eyewitnesses were unduly suggestive, raised in his pro sesupplemental brief, are unpreserved for appellate review (see CPL 470.05 [2]; see People v Parker, 74 AD3d1365, 1366 [2010]; People vHamdam, 58 AD3d 752 [2009]). In any event, these contentions are without merit(see People v Duuvon, 77 NY2d 541, 544 [1991]; People v Amico, 78 AD3d 1190 [2010]; People v Cruz, 31 AD3d 660, 661[2006]; People v Smith, 271 AD2d 332 [2000]; People v Grassia, 195 AD2d 607[1993]; People v Monforte, 183 AD2d 851, 852 [1992]). The defendant's reliance on trialtestimony to challenge the hearing court's determination is improper, since he failed to move toreopen the suppression hearing (seePeople v Wellington, 84 AD3d 984, 985 [2011]; People v Rice, 39 AD3d 567, 568 [2007]; People v Boynton, 35 AD3d 875,876 [2006]).
Any prejudice that may have resulted from the prosecutor's questioning of the defendantabout a prior marijuana arrest in the absence of a Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) was alleviated when the Supreme Court sustained thedefendant's objection to the question and provided a curative instruction to the jury (see People v Rayford, 80 AD3d780, 781 [2011]; People vMcNeil, 77 AD3d 685 [2010]).
The defendant's contentions that reversible error resulted from certain allegedly improperquestions the prosecutor asked him during cross-examination, from certain testimony elicitedfrom the rebuttal witness during direct examination, and from allegedly improper summation[*2]remarks are largely unpreserved for appellate review(see CPL 470.05 [2]; People vWest, 86 AD3d 583, 584 [2011]; People v Prowse, 60 AD3d 703, 704 [2009]; People v Crawford, 54 AD3d 961,962 [2008]). In any event, to the extent that some of the prosecutor's questioning of the defendanton cross-examination was improper, it does not warrant reversal. Moreover, the challengedtestimony that the prosecutor elicited from the rebuttal witness does not warrant reversal (see People v Bryant, 39 AD3d768, 769 [2007]; People vSiriani, 27 AD3d 670 [2006]; People v Overlee, 236 AD2d 133, 136 [1997]).Furthermore, the prosecutor's remarks during summation were mostly fair comment on theevidence, permissible rhetorical comment, or responsive to the summation of defense counsel (see People v Dorgan, 42 AD3d505, 505 [2007]; People v McHarris, 297 AD2d 824, 825 [2002]; People vClark, 222 AD2d 446, 447 [1995]; People v Vaughn, 209 AD2d 459, 459-460[1994]). To the extent that some of the comments were improper, they were sufficientlyaddressed by the trial court's instructions to the jury (see People v Evans, 291 AD2d 569[2002]; People v Brown, 272 AD2d 338, 339 [2000]), or were not so flagrant as to denythe defendant a fair trial (see People vJenkins, 93 AD3d 861 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention that he was denied the effective assistance of counsel, raised inhis pro se supplemental brief, is without merit (see People v Baldi, 54 NY2d 137, 147[1981]; see also People v Caban, 5NY3d 143, 156 [2005]).
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit. Rivera, J.P., Dickerson, Hall and Miller, JJ., concur.