| People v Taylor |
| 2014 NY Slip Op 06015 [120 AD3d 842] |
| August 28, 2014 |
| Appellate Division, Second Department |
[*1](August 28, 2014)
| The People of the State of New York,Respondent, v Rhian Taylor, Appellant. |
Joel B. Rudin, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(McGann, J.), rendered April 29, 2010, convicting him of murder in the second degree,assault in the second degree, criminal possession of a weapon in the second degree (twocounts), and reckless endangerment in the first degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court improperly permitted a detectiveto testify that defense counsel was present at a lineup observed by a witness is largelyunpreserved for appellate review due to his belated objection (see People v Gray,86 NY2d 10 [1995]; People v Udzinski, 146 AD2d 245, 250 [1989]). In anyevent, the Supreme Court properly permitted the detective to so testify, as the fairness ofthe lineup was in issue (seePeople v Hamdam, 58 AD3d 752 [2009]; People v Foulks, 143 AD2d1038 [1988]; see also People v Valentine, 271 AD2d 245 [2000]).
Contrary to the defendant's contention, the Supreme Court did not err in admittingtestimony pertaining to a photographic identification of the defendant. While a witnessgenerally is not permitted to testify as to an extrajudicial identification of a photograph ofa defendant (see People v Griffin, 29 NY2d 91 [1971]), such testimony isappropriate where, as here, the defendant opened the door to this type of inquiry duringcross-examination of the witness (see People v McCrae, 69 AD3d 759, 761 [2010]; People v Carvalho, 60 AD3d1394 [2009]; People vHamilton, 33 AD3d 937, 938 [2006]; People v Cuiman, 229 AD2d 280,282 [1997]).
The defendant's contention that he was denied his right to receive meaningful noticeof a substantive jury inquiry is without merit (see CPL 310.30). The defendantexpressly agreed that the jury could be given any requested evidence without thenecessity of an appearance by either counsel. When the jury requested to "see thebenefits" offered to two of the prosecution's witnesses, the Supreme Court, in accordancewith the agreement, responded by sending into the jury room the cooperation agreementof one of the witnesses, which was the only such agreement that had been admitted intoevidence. Subsequently, when the Supreme Court read the note back to the jury, it stated,"I believe we sent in to you the cooperation agreement [of one of the witnesses]. That'swhat is in evidence." There was no further communication from the jury regardingbenefits offered to the [*2]two prosecution witnesses orthe cooperation agreement. While it may have been preferable for the court to seekfurther clarification from the jury with respect to its request to "see the benefits" (seePeople v Porteous, 193 AD2d 631, 631-632 [1993]), the wording of the subject jurynote, particularly when read in conjunction with several other notes, demonstrated thatthe jury was requesting only the physical exhibit. Under these circumstances, theSupreme Court's response did not fall outside the acceptable bounds of its discretion, andthus satisfied the requirement of CPL 310.30 (see People v O'Rama, 78 NY2d270, 279 [1991]; People v Porteous, 193 AD2d at 632).
The defendant's remaining contentions are unpreserved for appellate review, and, inany event, without merit. Mastro, J.P., Chambers, Lott and Duffy, JJ., concur.