| People v Cromwell |
| 2012 NY Slip Op 07123 [99 AD3d 1017] |
| October 24, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CoryCromwell, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Danielle Hartman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered June 23, 2010, convicting him of robbery in the first degree (three counts) andattempted robbery in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel due to his counsel's failure to argue that the lineup identifications should have beensuppressed because the complainants were together before and after the lineup, so they "may"have spoken to one another. As the contention that the complainants may have spoken to oneanother is purely speculative and unsupported by the hearing record, the defendant has not methis burden of proving that he was deprived of the effective assistance of counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]; see People v Reyes, 60 AD3d 873, 874 [2009]; People vCelestin, 231 AD2d 736 [1996]; People v Morales, 134 AD2d 292 [1987]).Similarly, the defendant was not deprived of the effective assistance of counsel by counsel'salleged failure to move to re-open the Wade hearing (see United States v Wade,388 US 218 [1967]). " 'A lawyer is not ineffective for failing to make a motion that is unlikely tosucceed' " (People v Mack, 91AD3d 794, 795 [2012], quoting People v Ennis, 41 AD3d 271, 274 [2007], affd 11 NY3d403 [2008], cert denied 556 US 1240 [2009]; see generally CPL 710.40 [4]; People v Barrett, 17 AD3d 688[2005]). Such is the case here.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying his pretrial motion for severance and in granting the People's motion toconsolidate (see CPL 200.20 [2] [c]; [3] [a]; [4]; People v Lane, 56 NY2d 1, 8-9[1982]; People v Montalvo, 34AD3d 600 [2006]; People v Berta, 213 AD2d 659, 660 [1995]).
The defendant's contention that he was deprived of a fair trial because the prosecutor madeallegedly improper remarks during his summation is unpreserved for appellate review, as thedefendant either did not object to the remarks or made only general objections (see CPL470.05 [2]; People v Heide, 84 NY2d 943, 944 [1994]; People v Osorio, 49 AD3d 562[2008]; People v Muniz, 44 AD3d1074 [2007]; People v Salnave,41 AD3d 872, 874 [2007]). In any event, the challenged remarks either were responsive[*2]to arguments made by defense counsel, constituted faircomment on the evidence, or otherwise did not deprive the defendant of a fair trial (see People v Hudson, 54 AD3d774 [2008]; People v Olivo, 23AD3d 584 [2005]). Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.