| People v Jones |
| 2015 NY Slip Op 06930 [131 AD3d 1179] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dwayne Jones, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, CamilleO'Hara Gillespie, and Monica Hanna of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered April 11, 2012, convicting him of robbery in the first degree (twocounts) and criminal possession of a weapon in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing(Riviezzo, J.), of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
As the People did not offer identification testimony at the trial from the witness whomade a showup identification, the defendant's contention that the hearing court erred indenying that branch of his omnibus motion which was to suppress that identificationtestimony is academic (seePeople v Harris, 68 AD3d 783 [2009]; People v Frantz, 1 AD3d 455, 456 [2003]).
Contrary to the defendant's contention, the hearing court properly denied that branchof his omnibus motion which was to suppress testimony of a lineup identification. Thephotographs taken at the lineup, at which the defendant chose his seat and positionnumber, reflect that the participants were similar to the defendant in skin tone and age,and any differences in clothing or hairstyle were minimized by the fact that theparticipants all wore identical covers over their clothing and hospital caps to cover theirhair (see People v Bailey,121 AD3d 913, 914 [2014]; People v Moore, 118 AD3d 916 [2014]). The defendant'scontention that the witnesses who viewed the lineup may have discussed the appearanceof the perpetrator with each other prior to viewing the lineup is speculative (see People v Gant, 26 AD3d516, 517 [2006]).
The defendant's contention that the trial court erred in permitting a detective to testifythat he arrested the defendant immediately after the witnesses viewed the lineup isunpreserved for appellate review (see People v Marshall, 97 AD3d 840, 841 [2012]; People v Garrett, 62 AD3d899 [2009]). In any event, although the testimony constituted impermissibleinferential bolstering (see e.g.People v Samuels, 22 AD3d 507, 509 [2005]; People v Fields, 309AD2d 945 [2003]), the error was harmless, as there was overwhelming evidence of thedefendant's guilt and no significant probability that the error contributed to hisconvictions (see People vMarshall, 97 AD3d 840, 841 [2012]; People v Urena, 23 AD3d [*2]587, 588 [2005]).
The defendant failed to preserve for appellate review his contention that he wasdeprived of his right to a fair trial by the trial court's failure to issue an instruction to thejury directing the jurors to consider the evidence as to each robbery separately(see CPL 470.05 [2]; People v Currie, 117 AD3d 1074, 1075 [2014]; Peoplev Manley, 293 AD2d 628 [2002]). In any event, under the circumstances of this case,since the defendant's identity was a primary issue at trial, and the two robberies, whichshared the same distinctive modus operandi, were properly joined for trial (seeCPL 200.20 [2] [b]; People vDobbins, 123 AD3d 1140 [2014]; People v Hussain, 35 AD3d 504, 505 [2006]), a charge thatthe robberies were distinct and separate and that evidence of guilt as to one of therobberies could not be considered as evidence of guilt as to the others would have beenimproper (see People vCurrie, 117 AD3d 1074, 1075 [2014]; People v Rios, 245 AD2d 470[1997]).
Finally, the trial court properly denied the defendant's request for a missing witnesscharge (see generally People v Gonzalez, 68 NY2d 424 [1986]). Mastro, J.P.,Cohen, Maltese and Barros, JJ., concur.