| People v Montanez |
| 2016 NY Slip Op 00259 [135 AD3d 528] |
| January 14, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Rafael Montanez, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Leeof counsel), and Cravath, Swaine & Moore LLP, New York (Alexander V. Maugeriof counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia Nunez, J., at suppressionhearing; Bruce Allen, J., at jury trial and sentencing), rendered December 18, 2012, asamended January 22, 2013, convicting defendant of two counts of burglary in the seconddegree, and sentencing him, as a persistent violent felony offender, to concurrent terms of16 years to life, unanimously affirmed.
The court properly exercised its discretion in permitting a police officer to identifydefendant as the person depicted in a surveillance videotape. This testimony "served toaid the jury in making an independent assessment regarding whether the man in the[video] was indeed the defendant" (People v Russell, 79 NY2d 1024, 1025[1992]), because there was "some basis for concluding that the witness [was] more likelyto correctly identify the defendant from the [video] than [was] the jury" (People v Sanchez, 95 AD3d241, 249 [1st Dept 2012], affd 21 NY3d 216 [2013]).
Defendant's objection, which was expressly limited to the testimony of the officer,failed to preserve his challenge to testimony by the victim of one of the burglaries abouther recognition of defendant in the video, and we decline to review this claim in theinterest of justice. As an alternative holding, we similarly find that the court properlyexercised its discretion in admitting the testimony. We also conclude, as to bothwitnesses, that the court minimized any prejudice by delivering thorough limitinginstructions on the role of the jury in deciding whether defendant was the persondepicted in the video. In any event, as to both witnesses, any error was harmless (seePeople v Crimmins, 36 NY2d 230 [1975]).
The hearing court properly denied defendant's motion to suppress a lineupidentification. Although, after a witness identified defendant from a photo array, anofficer should not have told the witness that he had picked out "the perpetrator," anysuggestiveness was attenuated by the passage of 19 days between the photo procedureand the lineup (see People vPerez, 128 AD3d 465 [1st Dept 2015]).
Defendant's challenge to the prosecutor's summation is unpreserved, and we declineto [*2]review it in the interest of justice. As an alternativeholding, we find that any improprieties in the summation were harmless in light of theoverwhelming evidence of guilt as to both crimes. Concur—Tom, J.P., Sweeny,Richter and Manzanet-Daniels, JJ.