| People v Choi |
| 2016 NY Slip Op 01507 [137 AD3d 808] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aram Choi, Appellant. |
Seymour W. James, Jr., New York, NY (David Crow and Friedman Kaplan Seiler& Adelman LLP [Eric Corngold and Elizabeth L. Macchiaverna], of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered May 23, 2012, convicting him of gang assault in the first degreeand gang assault in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motionwhich was to suppress the evidence of his pretrial lineup identification on the ground itwas tainted by the witnesses' prior viewings of surveillance videos and still photographsmade from those videos. The evidence at the suppression hearing did not establish that,at the lineup procedure, the witnesses were merely identifying the individual they hadseen in the videos and photographs rather than the man who had participated in thesubject altercation (see People v Young, 167 AD2d 366 [1990]). Moreover, thepassage of at least six weeks between the display of the videos and photographs to thewitnesses and their identifications of the defendant at the lineup attenuated any possibletaint of suggestiveness (see People v Butts, 279 AD2d 587 [2001]; People vYoung, 167 AD2d 366 [1990]; People v Allah, 158 AD2d 605, 606 [1990]).The defendant's reliance on the trial testimony to challenge the hearing court'sdetermination is improper, since he failed to move to reopen the suppression hearing (see People v Lightfoot, 124AD3d 802, 803 [2015]).
The defendant contends that the verdict convicting him of gang assault in the firstdegree is against the weight of the evidence because, under the facts of this case, thatverdict is irrational and inconsistent with the verdict acquitting him of manslaughter inthe first degree with respect to the same victim. However, the fact that the defendant wasacquitted of manslaughter in the first degree does not undermine the weight of theevidence supporting the jury's verdict convicting him of gang assault in the first degree(see People v Rayam, 94 NY2d 557, 562-563 [2000]). An intermediate appellatecourt conducting a weight of the evidence review of a mixed jury verdict may [*2]take into account " 'the possibility that the jury hasnot necessarily acted irrationally, but instead has exercised mercy' " (People vRayam, 94 NY2d at 561, quoting People v Tucker, 55 NY2d 1, 7 [1981]),and is not required "to assume the basis for any implied inconsistencies" in such mixedverdicts (People v Rayam, 94 NY2d at 563; see People v Pierre, 126 AD3d 817, 817 [2015]; People v Walton, 125 AD3d900, 901 [2015]; People vWoods, 82 AD3d 1277, 1277-1278 [2011]). Upon fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we are satisfied that the verdict of guilt as to the crime of gangassault in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the People's contention, the defendant's claim of improper bolsteringconcerning the prosecutor's use of a cooperation agreement of a witness was adequatelypreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86NY2d 10, 19 [1995]). However, the claim is without merit. The defendant and hiscodefendants raised the issue of the cooperating witness's motive for testifying and hiscredibility in their opening statements, and thus, the People were properly permitted, ondirect examination of that witness, to elicit the bolstering aspect of the cooperationagreement, i.e., the promise by the witness to testify truthfully, to enable the jury toassess the witness's credibility (see People v Hayes, 226 AD2d 1055 [1996];People v Cherry, 161 AD2d 185, 186-187 [1990]; People v Rivera, 155AD2d 941, 941-942 [1989]). Moreover, the subsequent introduction into evidence of theentire written agreement, on the People's redirect examination of the witness, was proper(see United States v Borello, 766 F2d 46 [2d Cir 1985]).
The defendant further contends that, during summation, the prosecutor improperlyvouched for the credibility of the People's witnesses and denigrated the sole defensewitness, and, as part of a PowerPoint presentation, displayed slides with accompanyingtext which highlighted the prosecutor's improper comments. These contentions, however,are unpreserved for appellate review, since the defendant either failed to object to thechallenged remarks or the slides, made only general objections, or failed to requestfurther curative relief when his objections were sustained or move for a mistrial on thegrounds currently raised when the court sua sponte gave curative instructions (seeCPL 470.05 [2]; People vRomero, 7 NY3d 911, 912 [2006]; People v Philips, 120 AD3d 1266, 1268 [2014]; People v Martin, 116 AD3d981, 982 [2014]). In any event, the majority of the challenged comments and slideswere within the broad bounds of rhetorical comment permissible in closing arguments,constituted a fair response to arguments made by defense counsel in summation, orconstituted fair comment on the evidence (see People v Halm, 81 NY2d 819, 821[1993]; People v Quezada,116 AD3d 796, 798 [2014]). To the extent that some of the comments and slideswere improper, these errors were not, either individually or collectively, so egregious asto deprive the defendant of a fair trial (see People v Stevenson, 129 AD3d 998, 999 [2015]).
The defendant's remaining contention is without merit. Mastro, J.P., Hall, Malteseand LaSalle, JJ., concur.