| People v Kerce |
| 2016 NY Slip Op 04558 [140 AD3d 1659] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCharles Kerce, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered June 5, 2013. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the first degree (Penal Law § 140.30 [4]) and robberyin the first degree (§ 160.15 [4]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). We reject defendant's contention thatthe photo identification procedure was unduly suggestive, and County Court thereforeproperly refused to suppress the identification testimony of the victim. The subjects inthe photo array were sufficiently similar in appearance, and "[t]he fact that defendant'sphotograph has a slightly lighter background than the others does not support theconclusion that the identification procedure was unduly suggestive" (People vBurns, 186 AD2d 1015, 1016 [1992], lv denied 81 NY2d 837 [1993]; see People v Redding, 132AD3d 700, 700 [2015]). We reject defendant's further contention that the court erredin determining that the identification of defendant by another witness was confirmatory.The testimony of the witness at the Rodriguez hearing established that thewitness had known defendant for approximately 20 years (see People v Williams, 101AD3d 1730, 1731-1732 [2012], lv denied 21 NY3d 1021 [2013]; People v Whitlock, 95 AD3d909, 911 [2012], lv denied 19 NY3d 978 [2012]; see generally People vRodriguez, 79 NY2d 445, 452 [1992]). The court properly refused to preclude theidentification testimony of the witness based on the People's failure to provide noticepursuant to CPL 710.30. Inasmuch as the witness's identification was confirmatory, nonotice was required (see Peoplev Boyer, 6 NY3d 427, 431-432 [2006]; Rodriguez, 79 NY2d at 452;People v Tas, 51 NY2d 915, 916 [1980]; cf. People v Pacquette, 25 NY3d 575, 580 [2015]).
Contrary to defendant's contention, the court properly allowed a witness to testify tostatements made by defendant and another man because the statements qualified asadoptive admissions (see People v Campney, 94 NY2d 307, 311-312 [1999]; People v Harper, 132 AD3d1230, 1234 [2015]). Defendant further contends that he was deprived of a fair trialby prosecutorial misconduct based on the prosecutor's cross-examination of a witnessand defendant and his comments during summation. Defendant's contention is preservedfor our review only in part inasmuch as he failed to object to the majority of theprosecutor's alleged improprieties (see People v Jemes, 132 AD3d 1361, 1362-1363 [2015],lv denied 26 NY3d 1110 [2016]; People v Jones, 114 AD3d 1239, 1241 [2014], lvdenied 23 NY3d 1038 [2014], 25 NY3d 1166 [2015]). In any event, defendant'scontention is without merit. "Reversal based on prosecutorial misconduct is 'mandatedonly when the conduct [complained of] has caused such substantial prejudice to thedefendant that he has been denied due process of law' " (People v Jacobson, 60 AD3d1326, 1328 [2009], lv denied 12 [*2]NY3d916 [2009]) and, here, "[a]ny improprieties were not so pervasive or egregious as todeprive defendant of a fair trial" (Jones, 114 AD3d at 1241 [internal quotationmarks omitted]; see People vIelfield, 132 AD3d 1298, 1299-1300 [2015]). Finally, the sentence is not undulyharsh or severe. Present—Smith, J.P., Centra, DeJoseph, Curran and Scudder,JJ.