| People v Robinson |
| 2016 NY Slip Op 02671 [138 AD3d 764] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Robinson, Appellant. |
Papa DePaola & Brounstein, Bayside, NY (Michael E. Soffer of counsel), forappellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg, Cristin N.Connell, and Joseph Mogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered April 17, 2013, convicting him of robbery in the first degree(eight counts), burglary in the first degree (five counts), robbery in the second degree(two counts), criminal possession of a weapon in the second degree, burglary in thesecond degree, criminal possession of a weapon in the third degree, and assault in thesecond degree (two counts), upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Calabrese, J.), of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant improperly relies, in part, upon trial testimony to challenge thehearing court's determination denying suppression of showup identification evidence.Trial testimony may not be considered in evaluating a suppression ruling on appeal(see People v Abrew, 95 NY2d 806, 808 [2000]; People v Jerry, 126 AD3d1001, 1002 [2015]; Peoplev Hudson, 71 AD3d 1046, 1047 [2010]).
The defendant contends that he was denied due process and deprived of a fair trialbecause the People failed to disclose, prior to the suppression hearing, that one of thecomplainants had seen him but failed to identify him during the first of two showupprocedures. Contrary to the defendant's contention, the failure to disclose thisinformation did not deprive the defendant of a fair trial. Moreover, although the People'sfailure to provide the defendant with notice of the first showup procedure violated theprovisions of CPL 710.30 (see People v Lopez, 84 NY2d 425 [1994]), thisviolation was harmless beyond a reasonable doubt, since the evidence of the defendant'sguilt, without the testimony, was overwhelming, and there was no reasonable possibilitythat the error might have contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 237 [1975]; People v Ward, 116 AD3d 989 [2014]; People v Siler, 45 AD3d1403 [2007]; People v Francis, 303 AD2d 598 [2003]; People vWilliams, 186 AD2d 698 [1992]). Moreover, there was no Brady violation(see Brady v Maryland, 373 US 83 [1963]). The information, if disclosed, wouldnot have affected the ultimate decision on the issues in question (see People vGeaslen, 54 NY2d 510 [1981]; People v Scott, 216 AD2d 592 [1995],affd 88 NY2d 888 [1996]; see also People v West, 184 AD2d 743, 743[1992]; People v Jones, 171 AD2d 757, 757 [1991]).
[*2] Contrary to the defendant's contention, thatcomplainant's identification testimony was not incredible as a matter of law (see People v Scott, 65 AD3d707 [2009]; People vJohn, 51 AD3d 819 [2008]). In any event, this was not a case where all of theevidence of guilt comes from a single prosecution witness who gives irreconcilabletestimony pointing both to guilt and innocence, and where the jury is left without basis,other than impermissible speculation, for its determination of either (see People v Calabria, 3 NY3d80, 82 [2004]; People vCrawford, 38 AD3d 680, 681 [2007]).
The defendant failed to preserve for appellate review his contention that the trialcourt erred in failing to re-open the Wade hearing or declare a mistrial, as theapplication by his trial counsel was merely to preclude the identification testimony (see People v Clanton, 69 AD3d754 [2010]). In any event, the defendant "failed to demonstrate that he discoveredadditional facts, not discoverable with reasonable diligence before the determination ofthe motion, that would have affected the court's ultimate determination of his suppressionmotion" (People vEkwegbalu, 131 AD3d 982, 984 [2015]; see People v Clark, 88 NY2d552, 555 [1996]; People v Fuentes, 53 NY2d 892, 894 [1981]; CPL 710.40 [4]),and, under the circumstances, a mistrial was not warranted (see CPL 280.10[1]).
The defendant failed to preserve for appellate review his contention that certaintestimony by a police witness constituted improper bolstering (see People vTrowbridge, 305 NY 471 [1953]) since he did not join in his codefendant's objectionnor raise any objection on his own behalf (see People v Moore, 49 AD3d 901 [2008]; People v Islam, 22 AD3d599 [2005]). In any event, there was no significant probability that, but for the error,the jury would have acquitted the defendant (see People v Clanton, 69 AD3d at754; People v Toro, 151 AD2d 705 [1989]).
The defendant's contention that a police witness committed perjury and that theprosecutor suborned it is unpreserved for appellate review (see People v Tate, 110 AD3d1013 [2013]; People vGarcia, 57 AD3d 918 [2008]; People v Jordan, 181 AD2d 745 [1992];CPL 470.05 [2]). In any event, the contention is without merit (see People v Tate,110 AD3d at 1014; People vRios, 81 AD3d 489 [2011]; People v Cusamano, 22 AD3d 427 [2005]; People vJordan, 181 AD2d at 745).
The defendant contends that the verdict was against the weight of the evidence dueto, among other things, the testimony of the arresting police officer concerning his abilityto see the defendant holding and then tossing a gun, which the defendant contends isboth implausible and inconsistent with that of another police witness. The defendant alsopoints to other alleged discrepancies in the People's proof, including the failure torecover diamond earrings taken from a complainant. In fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342, 348 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict was not againstthe weight of the evidence (seePeople v Lucas, 111 AD3d 763 [2013]).
The defendant's general one-word objection to the challenged comments made by theprosecutor on summation did not preserve the specific claims now raised on appeal (see People v Floyd, 97 AD3d837 [2012]), inter alia, that the prosecutor improperly shifted the burden of proof tothe defendant and relied on facts not in evidence. In any event, the comments were eitherfair comment on the evidence or the inferences to be drawn therefrom (see People vAshwal, 39 NY2d 105 [1976]), responsive to arguments and theories presented onthe defense summation (see People v Galloway, 54 NY2d 396 [1981]) orharmless under the circumstances (see People v Crimmins, 36 NY2d 230 [1975]).Moreover, the comments did not constitute an impermissible effort to shift the burden ofproof (see People v Peters,98 AD3d 587, 589 [2012]).
The defendant's contention that certain counts in the indictment were multiplicitousis unpreserved for appellate review (see People v Allen, 24 NY3d 441, 448-450 [2014];People v Cruz, 96 NY2d 857 [2001]), and, in any event, without merit.Leventhal, J.P., Dickerson, Duffy and LaSalle, JJ., concur.