| People v Rhodes |
| 2014 NY Slip Op 01469 [115 AD3d 681] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jack Rhodes, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andJohnnette Traill of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered December 2, 2009, convicting him of burglary in the first degree asa hate crime, robbery in the first degree as a hate crime, robbery in the second degree as ahate crime, burglary in the first degree (two counts), robbery in the first degree, robberyin the second degree, and assault in the second degree (four counts), upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant'srequest to call an identifying witness at the Wade hearing (see United States vWade, 388 US 218 [1967]). The defendant did not raise any substantial issuesregarding the constitutionality of the identification, the People's evidence was not notablyincomplete, and the defendant did not otherwise establish a need for this testimony (see People v Benson, 38 AD3d563, 564 [2007]; People vGant, 26 AD3d 516, 517 [2006]; People v Fox, 11 AD3d 709, 710 [2004]; People vScott, 290 AD2d 522, 522 [2002]).
The Supreme Court providently exercised its discretion in precluding the defendantfrom presenting expert testimony on the reliability of eyewitness identifications. Where acase "turns on the accuracy of eyewitness identifications and there is little or nocorroborating evidence connecting the defendant to the crime, it is an abuse of discretionfor a trial court to exclude expert testimony on the reliability of eyewitness identificationsif that testimony is (1) relevant to the witness's identification of defendant, (2) based onprinciples that are generally accepted within the relevant scientific community, (3)proffered by a qualified expert and (4) on a topic beyond the ken of the average juror"(People v LeGrand, 8NY3d 449, 452 [2007]; seePeople v Santiago, 17 NY3d 661, 669 [2011]). Here, there was sufficientcorroborating evidence connecting the defendant to the crimes to obviate the need forexpert testimony, including, inter alia, independent identifications by two witnesses otherthan the three complainants, surveillance videos, and the defendant's incriminatorystatements to police officers (see People v Abney, 13 NY3d 251, 269 [2009]; People v Young, 7 NY3d40, 46 [2006]; People v Lee, 96 NY2d 157, 163 [2001]; People v Rodriguez, 98 AD3d530, 532 [2012]; People vFernandez, 78 AD3d 726, 726-727 [2010]).[*2]
The Supreme Court providently exercised itsdiscretion in placing a time limit on the cross-examination of a certain prosecutionwitness (see Delaware v Van Arsdall, 475 US 673, 679 [1986]; Fenenbock vDirector of Corrections for Cal., 692 F3d 910, 920 [9th Cir 2012]; United Statesv Vest, 116 F3d 1179, 1186-1188 [7th Cir 1997], cert denied 522 US 1119[1998]; People v Schwartzman, 24 NY2d 241, 244 [1969], cert denied396 US 846 [1998]; Peoplev Rivera, 98 AD3d 529, 529 [2012]; People v Gaviria, 67 AD3d 701, 701-702 [2009]; seealso People v Knowles, 88 NY2d 763, 766 [1996]). Under the circumstances of thiscase, the defendant's contention that he was deprived of his constitutional rights ofconfrontation and due process is without merit.
The defendant's contention that certain allegedly improper comments made by theprosecutor during his summation deprived the defendant of a fair trial is largelyunpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vCrosdale, 103 AD3d 749, 750 [2013]; People v Parker-Davidson, 89 AD3d 1114 [2011]). In anyevent, most of the challenged remarks were proper because they were within the broadbounds of rhetorical comment permissible in closing arguments, responsive to argumentsmade by defense counsel in summation, or constituted fair comment on the evidence(see People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39NY2d 105, 109-110 [1976]; People v Stewart, 89 AD3d 1044, 1045 [2011]). To theextent that one spontaneous comment made in response to the defendant's outburst wasimproper, it was sufficiently addressed by the Supreme Court's instructions to the jury(see People v Hines, 102AD3d 889, 890 [2013]; People v Flowers, 102 AD3d 885, 886 [2013]; People vEvans, 291 AD2d 569, 569 [2002]) and was not so flagrant or pervasive as todeprive the defendant of a fair trial (see People v Ward, 106 AD3d 842, 843 [2013]; People v Philbert, 60 AD3d698, 699 [2009]; People vAlmonte, 23 AD3d 392, 394 [2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Eng, P.J., Balkin, Sgroi and Cohen, JJ., concur.