| People v Page |
| 2013 NY Slip Op 02889 [105 AD3d 1380] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vCorlan Page, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered August 8, 2007. The judgment convicted defendant, upon a jury verdict,of murder in the second degree (two counts), attempted robbery in the first degree (twocounts), burglary in the first degree (two counts) and criminal possession of a weapon inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, two counts of murder in the second degree (Penal Law § 125.25 [1],[3]), defendant contends that Supreme Court abused its discretion in precluding him fromoffering expert testimony on the reliability of eyewitness identifications. We reject thatcontention. "If . . . sufficient evidence corroborates an eyewitness'sidentification of the defendant, then . . . testimony concerning eyewitnessidentifications is unnecessary" (People v Santiago, 17 NY3d 661, 669 [2011]; see People v LeGrand, 8 NY3d449, 459 [2007]). Here, expert testimony was not required because "there were twostrong eyewitness identifications, as well as many items of circumstantial evidence that,when viewed as a whole, provided substantial corroboration" (People v Munnerlyn, 92 AD3d507, 507-508 [2012], lv denied 19 NY3d 965 [2012]; see People v Fernandez, 78AD3d 726, 726-727 [2010], lv denied 16 NY3d 830 [2011]; People v Smith, 57 AD3d356, 357 [2008], lv denied 12 NY3d 821 [2009]).
Contrary to defendant's contention, the court did not err in imposing a sanction otherthan dismissal of the charges based on the People's loss of a basketball jersey that wasfound in the vicinity of the crime scene and that matched the eyewitness descriptions ofclothing worn by the perpetrator. It is within the sound discretion of the court todetermine the appropriate sanction for the loss of evidence (see People v Kelly,62 NY2d 516, 521 [1984]), and the court's "overriding concern must be to eliminate anyprejudice to the defendant while protecting the interests of society" (id. at 520)."The loss or destruction of evidence prior to trial does not necessarily require dismissalof the charge[s] and indeed dismissal is considered a drastic remedy rarely invoked as anappropriate sanction for the People's failure to preserve evidence" (People vHaupt, 71 NY2d 929, 931 [1988]). Here, defendant was able to mitigate anyprejudice caused by the loss of the basketball jersey by cross-examining a police officerabout the loss of the jersey and presenting evidence that, prior to the loss of the jersey,the People collected a DNA sample from [*2]it that didnot match the DNA of defendant. In addition, defense counsel referred to the loss of thejersey in his summation. Under these circumstances, and "[g]iven that the exculpatoryvalue of the missing evidence is completely speculative . . . , the court didnot abuse its discretion in imposing the lesser sanction" of a permissive adverse inferenceinstruction (People v Pfahler, 179 AD2d 1062, 1063 [1992]; see generallyPeople v Feliciano, 301 AD2d 480, 481 [2003], lv denied 100 NY2d 538[2003]; People v Hill, 266 AD2d 929, 929 [1999], lv denied 94 NY2d903 [2000]).
Defendant contends that the prosecutor's peremptory challenges with respect to twoprospective jurors constitute Batson violations. We reject that contention. ThePeople offered race-neutral reasons for each peremptory challenge at issue, and thereasons were not pretextual (see generally People v Smocum, 99 NY2d 418, 422[2003]; People v Allen, 86 NY2d 101, 109-110 [1995]). Specifically, the Peopleexplained that they used one peremptory challenge with respect to an African-Americanwoman because her brother was a prison chaplain and she therefore was likely to besympathetic to defendant (seegenerally People v McCoy, 46 AD3d 1348, 1349 [2007], lv denied 10NY3d 813 [2008]). The People further explained that they used a peremptory challengewith respect to another African-American woman because, inter alia, she was blind inone eye and partially deaf in one ear and those disabilities may have affected her abilityto see and hear the evidence at trial (see People v Falkenstein, 288 AD2d 922,922 [2001], lv denied 97 NY2d 704 [2002]).
Although we agree with defendant that the prosecutor on summation improperlysuggested that defendant had the burden of proof, we conclude that the prosecutor's"improper comment[s were] not so egregious that defendant was thereby deprived of afair trial" (People v Willson, 272 AD2d 959, 960 [2000], lv denied 95NY2d 873 [2000]). We note in particular that the court sustained defendant's objectionsto the improper comments and instructed the jury to disregard them, and the jury ispresumed to have followed the court's instructions (see generally People v Wallace, 59 AD3d 1069, 1070[2009], lv denied 12 NY3d 861 [2009]). Moreover, "the court clearly andunequivocally instructed the jury that the burden of proof on all issues remained with theprosecution" (People v Pepe, 259 AD2d 949, 950 [1999], lv denied 93NY2d 1024 [1999]; see Peoplev Matthews, 27 AD3d 1115, 1116 [2006]). Defendant concedes that hisremaining contentions concerning prosecutorial misconduct during summation are notpreserved for our review (see CPL 470.05 [2]; People v Cox, 21 AD3d1361, 1363-1364 [2005], lv denied 6 NY3d 753 [2005]). In any event, "'[t]he [remaining] challenged remarks generally constituted fair comment on the evidenceand [the] reasonable inferences to be drawn therefrom, and . . . wereresponsive to defense arguments' " (People v Taylor, 68 AD3d 1728, 1728 [2009], lvdenied 14 NY3d 845 [2010]).
Defendant contends that the court erred in allowing the People to present evidence ofa prior conviction by presenting testimony concerning the existence of defendant'sfingerprints in the system. Defendant failed to preserve that contention for our review(see CPL 470.05 [2]; People v Crump, 77 AD3d 1335, 1336 [2010], lvdenied 16 NY3d 857 [2011]), and we conclude in any event that the People did notin fact thereby present evidence of a prior conviction. "[T]he testimony of a detective thatthe defendant's fingerprints were already in the system, which was not specificallyidentified as police-related, did not compel the inference that the defendant had a pastcriminal history" (People vClemmons, 83 AD3d 859, 860 [2011], lv denied 19 NY3d 971 [2012];see People v Henry, 71AD3d 1159, 1160 [2010], lv denied 15 NY3d 774 [2010]).
Defendant further contends that the court erred in refusing to suppress identificationtestimony on the ground that the photo array from which the identification was made wasunduly suggestive. "Because the subjects depicted in the photo array [were] sufficientlysimilar in appearance so that the viewer's attention [was] not drawn to any onephotograph in such a way as to indicate that the police were urging a particular selection,the photo array was not unduly suggestive" (People v Gonzalez, 89 AD3d 1443, 1444 [2011], lvdenied 19 NY3d 973 [2012], reconsideration denied 20 NY3d 932 [2012][internal quotation marks omitted]). We also reject defendant's contention [*3]that the subsequent lineup identification procedure wasunduly suggestive (see generally People v Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990]).
Defendant failed to preserve for our review his contention that the People committeda Rosario violation by failing to disclose a photograph (see CPL 470.05[2]), and that contention lacks merit in any event. The photograph does not constituteRosario material because it is not "a statement made by a prosecution witness"(People v Martinez, 298 AD2d 897, 898 [2002], lv denied 98 NY2d 769[2002], cert denied 538 US 963 [2003], reh denied 539 US 911 [2003];see CPL 240.45 [1] [a]).
Finally, defendant contends that he was denied effective assistance of counselbecause defense counsel, inter alia, failed to make objections during trial and therebyfailed to preserve several issues for appellate review. We reject that contention. Asdiscussed above, defendant's unpreserved contentions are without merit, and "[a]defendant is not denied effective assistance of trial counsel merely because counsel doesnot make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]). With respect to theremaining alleged deficiencies on the part of defense counsel, we conclude that, viewingthe record as a whole and as of the time of the representation, defendant receivedeffective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147[1981]). Present—Smith, J.P., Sconiers, Valentino and Whalen, JJ.