| People v Then |
| 2015 NY Slip Op 04159 [128 AD3d 864] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rafael Then, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Ellen C. Abbot, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered June 7, 2012, convicting him of robbery in the first degree androbbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Although the defendant, over his objection, wore orange prison pants for a portion ofthe first day of jury selection, reversal is not warranted. The jury selection occurred overa two-day period and the trial commenced immediately thereafter and continued for threemore days. On that first day of jury selection, out of the presence of any prospectivejurors, in response to the defendant's request to adjourn the matter for several daysbecause of his appearance in the orange pants, the Supreme Court adjourned theproceeding until after lunch to give the defendant an opportunity to obtain a change ofclothing. When the court reconvened the proceeding in the afternoon, the court notedthat the defendant was wearing a black knit top, although he still was wearing the orangepants. Before any prospective jurors entered, the court directed that the defendant'swheelchair be moved closer to the defense table, and noted that the defendant wassituated the furthest distance possible from the prospective jurors in the courtroom. Thecourt also noted that, unless the jurors strained, it was unlikely that they would be able tosee the pants that the defendant was wearing. For the remainder of the trial, the defendantwore his own clothing. Under these circumstances, the fact that the defendant woreprison pants for half a day of jury selection was not an error so egregious as to deprivethe defendant of his right to a fair trial. Further, any other error regarding the clothingworn by the defendant was harmless since the evidence of the defendant's guilt wasoverwhelming and there is no reasonable possibility that this error affected the outcomeof the trial (see People vBest, 19 NY3d 739, 744 [2012]; United States v Hurtado, 47 F3d 577,582 [2d Cir 1995]).
The Supreme Court properly admitted a witness's testimony that she observed a gunin the defendant's possession at various times during October 2006. This evidence wasadmissible to establish the defendant's identity, and its probative value outweighed anyprejudicial effect (see People vWinkfield, 98 AD3d 923 [2012]; People v Clemmons, 83 AD3d 859, 860 [2011]; Peoplev Clink, 32 [*2]AD3d 862, 862-863 [2006];People v Rivera, 281 AD2d 702, 703 [2001]; People v Espinal, 262AD2d 245 [1999]).
The defendant's contention that he was deprived of a fair trial due to comments theprosecutor made on summation is unpreserved for appellate review (see CPL470.05 [2]), because the defense either failed to object to the challenged comments, madeonly general objections, or failed to request additional relief when the Supreme Courtsustained an objection, and the untimely defense motion for a mistrial failed to preservethe contention for appellate review (see People v Romero, 7 NY3d 911, 912 [2006]; People v Salnave, 41 AD3d872, 874 [2007]). In any event, the defendant was not deprived of a fair trial.Moreover, any other error with respect to the prosecutor's summation was harmless (see People v Roscher, 114AD3d 812, 813 [2014]).
The defendant's remaining contentions are without merit. Rivera, J.P., Roman, Sgroiand Duffy, JJ., concur.