| People v Rouse |
| 2017 NY Slip Op 08330 [155 AD3d 555] |
| November 28, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Mark Rouse, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J. at suppression hearing;Anthony J. Ferrara, J. at jury trial and sentencing), rendered June 11, 2015, convicting defendantof criminal sale of a controlled substance in the third degree, and sentencing him, as a secondfelony offender, to a term of six years, unanimously affirmed.
The court properly denied defendant's suppression motion. It is undisputed that the hearingevidence established probable cause for defendant's arrest. Under the circumstances presented,the People did not receive sufficient notice that defendant would be arguing that, notwithstandingthe presence of probable cause, the search might still have been conducted in a mannerwarranting suppression. In any event, there is no basis, other than speculation, to supportdefendant's assertion that there may have been a strip search, a search of a closed container, oranything other than an ordinary search incident to arrest.
Defendant's contention that certain testimony violated his right of confrontation is mootbecause the jury acquitted defendant of the charge to which that evidence pertained (see People v Spallone, 150 AD3d556 [1st Dept 2017], lv denied 29 NY3d 1134 [2017]). To the extent that theevidence could be viewed as supporting the remaining charge, we find that any violation of theConfrontation Clause was harmless in light of the overwhelming evidence of guilt (seePeople v Crimmins, 36 NY2d 230 [1975]), which included the recovery of prerecorded buymoney from defendant.
The challenged portions of the People's summation were fair responses to defense counsel'sown summation, or fair comment on the evidence, and there was nothing so egregious as towarrant a new trial (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lvdenied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 119 [1st Dept1992], lv denied 81 NY2d 884 [1993]). Concur—Tom, J.P., Friedman, Andriasand Gesmer, JJ.