| People v Barcero |
| 2014 NY Slip Op 02948 [116 AD3d 1060] |
| April 30, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jason Barcero, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County(Lasak, J.), both rendered May 18, 2011, convicting him of attempted burglary in thesecond degree and possession of burglar tools under indictment No. 1751/09, andburglary in the second degree, grand larceny in the third degree, and criminal mischief inthe fourth degree (two counts) under indictment No. 1160/10, upon a jury verdict, andimposing sentences. The appeals brings up for review the denial, after a hearing (Grosso,J.), of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgments are affirmed.
The defendant's contention with respect to the denial of that branch of his omnibusmotion which was to suppress identification testimony as the fruit of an unlawful trafficstop is without merit (see People v Ramirez-Portoreal, 88 NY2d 99, 114 [1996];People v Green, 10 AD3d664 [2004]). Contrary to the defendant's contention, the police had reasonablesuspicion to stop and detain him.
Contrary to the defendant's contention, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), theevidence was legally sufficient to establish his guilt of burglary in the second degreebeyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL470.15 (5), we are satisfied that the verdict of guilt as to burglary in the second degreewas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court improperly denied the admissioninto evidence of a certain photograph of a basement window at the home where theattempted burglary occurred is without merit. The defendant failed to establish a properfoundation by showing that it was a fair and accurate representation of the window onthe date of the incident (see Moore v Leaseway Transp. Corp., 49 NY2d 720,723 [1980]; Rodriguez v NewYork City Tr. Auth., 81 AD3d 804 [2011]).
The defendant's contention that he was deprived of a fair trial by the admission of[*2]testimony at trial regarding his interaction with apolice officer is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, the defendant's contention is without merit, since defense counsel opened the doorto this testimony during her cross-examination of the police officer (see People vMelendez, 55 NY2d 445, 451 [1982]).
The defendant's challenge to certain remarks made by the prosecutor duringsummation is largely unpreserved for appellate review (see CPL 470.05 [2]). Inany event, most of the challenged remarks were proper because they were within thebroad bounds of rhetorical comment permissible in closing arguments, constituted a fairresponse to arguments made by defense counsel in summation, or constituted a faircomment on the evidence (seePeople v Barton, 110 AD3d 1089, 1090-1091 [2013]). To the extent that someof the comments were improper, they were harmless, since the evidence of thedefendant's guilt was overwhelming and there was no significant probability that theerrors might have contributed to the defendant's convictions (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Barton, 110 AD3d at1091). Dillon, J.P., Hall, Cohen and Hinds-Radix, JJ., concur.