| People v Benton |
| 2013 NY Slip Op 03196 [106 AD3d 1451] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DaleA. Benton, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered January 7, 2009. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the first degree (Penal Law § 160.15 [4]). Defendant'scontention that prosecutorial misconduct during voir dire warrants reversal of thejudgment has not been preserved for our review (see People v Pritchett, 248AD2d 967, 968 [1998], lv denied 92 NY2d 929 [1998]). In any event, weconclude that the prosecutor did not engage in misconduct by attempting to obtainunequivocal assurances from prospective jurors that they would be able to convictdefendant solely on the basis of the testimony of an 11-year-old eyewitness if thattestimony credibly established the elements of the crime beyond a reasonable doubt (see People v Calabria, 3 NY3d80, 82 [2004]; see also People v White, 213 AD2d 507, 508 [1995], lvdenied 86 NY2d 742 [1995]). Defendant further contends that he was deprived of afair trial by prosecutorial misconduct during summation. Defendant's contention withrespect to several of the prosecutor's allegedly improper comments is unpreserved for ourreview inasmuch as defendant failed to object to those comments (see People v Mull, 89 AD3d1445, 1446 [2011], lv denied 19 NY3d 965 [2012]; People v Freeman, 78 AD3d1505, 1505 [2010], lv denied 15 NY3d 952 [2010]), and we decline toexercise our power to review his contention with respect to those comments as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). We rejectdefendant's contention with respect to the remaining allegedly improper comments madeby the prosecutor during summation. The prosecutor's references to defendant's trialstrategy as "smoking mirrors [sic]" do " 'not constitute such a pervasive pattern ofmisconduct that reversal is warranted' " (People v Goncalves, 239 AD2d 923,923 [1997], lv denied 91 NY2d 873 [1997]). Additionally, although the Peoplecorrectly concede that the prosecutor's reference to an unindicted accomplice duringsummation was improper, defendant's prompt objection and County Court's curativeinstruction dispelled any prejudice (see People v Smith, 195 AD2d 951, 951[1993], lv denied 82 NY2d 727 [1993]). The prosecutor's comment alluding todefendant's failure to call a certain witness on his behalf did not constitute animpermissible effort to shift the burden of proof inasmuch as defendant elected to presenta defense (see People v Tankleff, 84 NY2d 992, [*2]994 [1994]; People v Rivera, 292 AD2d 549, 549[2002], lv denied 98 NY2d 654 [2002]). In any event, we note that " 'the courtclearly and unequivocally instructed the jury that the burden of proof on all issues [withrespect to the crimes charged] remained with the prosecution' " (People v Matthews, 27 AD3d1115, 1116 [2006]).
We reject defendant's further contention that the court abused its discretion inallowing testimony that the eyewitness did not identify the perpetrator from a large groupof photographs that were assembled based upon her initial description of the perpetrator.Where " 'the reliability of an eyewitness identification is at issue,' " negativeidentification evidence establishing that a witness did not identify a suspect as theperpetrator is admissible because it " 'can tend to prove that the eyewitness possessed theability to distinguish the particular features of the perpetrator' " (People v Wilder,93 NY2d 352, 357 [1999], quoting People v Bolden, 58 NY2d 741, 744[Gabrielli, J., concurring 1982]). Here, the People demonstrated that there were somesimilarities between the features of the persons in the photographs shown to theeyewitness and the features of defendant, i.e., they were the same race and gender asdefendant. Thus, the People established the relevancy of the negative identificationevidence, and the court did not abuse its discretion in concluding that the probative valueof the evidence outweighed any prejudicial effect (see id. at 357-358).
Lastly, with respect to defendant's contention that he was denied effective assistanceof counsel, we conclude that "the evidence, the law, and the circumstances of [this]particular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147[1981]). Present—Centra, J.P., Fahey, Carni, Lindley and Whalen, JJ.