| People v Berry |
| 2013 NY Slip Op 06872 [110 AD3d 1002] |
| October 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Oliver Berry, Also Known as Chris Tucker,Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered June 17, 2009, convicting him of murder in the second degree,attempted murder in the second degree, criminal possession of a weapon in the seconddegree, and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
"[A] witness's invocation of the Fifth Amendment privilege may amount toreversible error in two instances: one, when the prosecution attempts to build its case oninferences drawn from the witness's assertion of the privilege, and two, when theinferences unfairly prejudice defendant by adding 'critical weight' to the prosecution'scase in a form not subject to cross-examination" (People v Vargas, 86 NY2d 215,221 [1995], citing Namet v United States, 373 US 179, 186-187 [1963]; seePeople v Berg, 59 NY2d 294, 298 [1983]; People v Alston, 71 AD3d 684 [2010]). "Absent aconscious and flagrant attempt by the prosecutor to build a case out of the inferencesarising from the use of the testimonial privilege or without some indication that thewitness's refusal to testify adds critical weight to the People's case in a form not subjectto cross-examination, reversal is not warranted" (People v Jones, 138 AD2d 405,406 [1988]). Under the circumstances presented here, invocation of the FifthAmendment privilege against self-incrimination by a prosecution witness did not addcritical weight to the prosecution's case, and the defendant was not deprived of his rightto a fair trial by that testimony (see People v Berg, 59 NY2d at 298; People vAlston, 71 AD3d at 685). Furthermore, the Supreme Court properly permitted thePeople to impeach that witness with a prior inconsistent statement (see CPL60.35 [1]; People vBonhomme, 85 AD3d 939 [2011]; People v Jones, 25 AD3d 724 [2006]; People vMagee, 128 AD2d 811 [1987]).
The defendant's challenges to the prosecutor's cross-examination of the defenseexpert and to certain remarks during summation are unpreserved for appellate review(see CPL 470.05 [2]). In any event, the cross-examination was proper (see People v Rivera, 91 AD3d972, 973 [2012]), and the challenged summation remarks were within the broadbounds of rhetorical comment permissible in closing arguments, were responsive toarguments made by defense counsel in summation, or constituted fair comment on theevidence (see People vWithfield, 106 AD3d 760, [*2]761 [2013],lv denied 21 NY3d 1021 [2013]; People v Brown, 106 AD3d 754 [2013], lv denied21 NY3d 1014 [2013]). The defendant's challenge of the prosecutor's use of slidesduring summation is unpreserved for appellate review (see CPL 470.05 [2]). Inany event, under the circumstances of this case, the prosecutor's use of slides as visualaids during summation did not prejudice the defendant or deprive him of a fair trial (see generally People v Baker,14 NY3d 266 [2010]; seePeople v Tiro, 100 AD3d 663 [2012]).
The Supreme Court improperly admitted into evidence a photograph of the victimtaken when he was alive, because this evidence was not relevant to any material fact tobe proved at trial (see People vWilson, 71 AD3d 799, 800 [2010]; People v Abdur-Rahman, 69 AD3d 951 [2010]; People v Thompson, 34 AD3d852, 854 [2006]). However, the error was harmless, as there was overwhelmingevidence of the defendant's guilt even if the photograph had not been admitted intoevidence, and no significant probability that the error contributed to his convictions(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Thompson, 34 AD3d852 [2006]).
The defendant's remaining contention is without merit. Skelos, J.P., Cohen, Millerand Hinds-Radix, JJ., concur.