| People v Holmes |
| 2018 NY Slip Op 08954 [167 AD3d 1039] |
| December 26, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tremaine Holmes, Appellant. |
Paul Skip Laisure, New York, NY (De Nice Powell of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, andKristen A. Carroll of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M.Del Guidice, J.), rendered January 4, 2016, convicting him of murder in the second degree andattempted murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial by remarks made by theprosecutor during summation is without merit. The challenged remarks either were fair commenton the evidence (see People v Ashwal, 39 NY2d 105, 109-110 [1976]), were a fairresponse to defense counsel's summation (see People v Marcus, 112 AD3d 652, 653 [2013]; People v Rogers, 106 AD3d 1029,1030 [2013]; People v Birot, 99AD3d 933 [2012]; People v Cox, 161 AD2d 724, 725 [1990]), or do not requirereversal as they were sufficiently addressed by the Supreme Court's instructions to the jury (see People v Elder, 152 AD3d 787,789 [2017]; People v Bunting, 146AD3d 794, 795 [2017]; People vHamilton, 135 AD3d 958 [2016]).
The defendant's claim that he was deprived of a fair trial by the Supreme Court's failure togive the jury an expanded identification charge is unpreserved for appellate review, as defensecounsel merely requested the "generic" identification charge (see People v Campbell, 142 AD3d 623, 624 [2016]; People vPerez, 77 NY2d 928 [1991]). In any event, the contention is without merit. The court'scharge constituted a correct statement of the law which sufficiently apprised the jury that thereasonable doubt standard applied to identification (see People v Knight, 87 NY2d 873[1995]; People v Perez, 77 NY2d 928 [1991]; People v Newton, 46 NY2d 877[1979]; People v Campbell, 142 AD3d at 624). "Moreover, when evaluated against thebackground of all the evidence presented, the failure to expand the charge on identification didnot deprive the defendant of a fair trial" (People v Campbell, 142 AD3d at 624; seePeople v Knight, 87 NY2d at 875; People v Crimmins, 36 NY2d 230, 238[1975]).
The defendant next contends that testimony elicited from a police detective that thedefendant was arrested "[a]fter the lineup was conducted" constituted impermissible bolstering.This contention is not preserved for appellate review, as defense counsel did not object to theadmission of the challenged testimony (see CPL 470.05 [2]; People v Locenitt, 157 AD3d 905,907 [2018]; People v Bonilla, 151AD3d 735, 736 [2017]; People vJones, 131 AD3d 1179, 1180 [2015]; People v Speaks, 124 AD3d 689, 691 [2015]). However, contraryto the People's assertion, the claim was not waived by defense counsel's elicitation oncross-examination of similar testimony, because defense counsel was not the first to elicit thechallenged testimony and did not base any of his summation comments on the detective'stestimony regarding the lineup (cf. People v Bonilla, 151 AD3d at 736; People v Bryan, 50 AD3d 1049,1050-1051 [2008]). Under the circumstances, we reach this issue in the exercise of our interest ofjustice jurisdiction (see CPL 470.15 [6] [a]; People v Lee, 22 AD3d 602, 602-603 [2005]).
We conclude that the detective's testimony that the defendant was arrested "[a]fter the lineupwas conducted" could have led the jury to believe that the police were induced to take action as aresult of the lineup identification, and therefore constituted improper implicit bolstering of thewitness's identification testimony (see People v Holt, 67 NY2d 819, 821 [1986]; People v Jones, 131 AD3d 1179,1180 [2015]; People v Rankins, 81AD3d 857, 858 [2011]; People vNesbitt, 77 AD3d 854, 855 [2010]; People v Clark, 28 AD3d 785, 786 [2006]; People v Lee, 22AD3d at 602-603; People vSamuels, 22 AD3d 507, 509 [2005]; People v Fields, 309 AD2d 945, 945-946[2003]; see generally People v Trowbridge, 305 NY 471 [1953]).
The People nevertheless maintain that this error was harmless in the context of this case."Harmless error analysis proceeds in two stages" (People v Johnson, 57 NY2d 969, 970[1982]). First, "unless the proof of the defendant's guilt, without reference to the error, isoverwhelming, there is no occasion for consideration of any doctrine of harmless error"(People v Crimmins, 36 NY2d at 241). Second, for a nonconstitutional error to beharmless the appellate court must conclude "that there is [no] significant probability. . . in the particular case that the jury would have acquitted the defendant had it notbeen for the error or errors which occurred" (id. at 242; see People v Johnson, 57NY2d at 970).
In analyzing the effect of a bolstering error, the Court of Appeals has stated that "[t]hestandard of harmlessness in a Trowbridge error case is whether 'the evidence of identity isso strong that there is no substantial issue on the point' " (People v Mobley, 56NY2d 584, 585 [1982], quoting People v Malloy, 22 NY2d 559, 567 [1968]). In thecontext of a case involving an identification by a single witness, the Court of Appeals hasconcluded that a bolstering error was harmless in light of, among other things, the "unusuallycredit-worthy" nature of the witness's identification (People v Johnson, 57 NY2d at970).
Here, although the only direct evidence connecting the defendant to the commission of thecrimes charged was the identification testimony of a single witness, the evidence of thedefendant's guilt, without reference to the error, was overwhelming (see id. at 970-971).The record demonstrates that the witness watched as the defendant approached the witness in awell-lit area and that the defendant's face was not obstructed in any way. The witness testifiedthat he recognized the defendant at the time of the shooting because the witness had seen thedefendant around the neighborhood on prior occasions. Furthermore, although the physicalevidence recovered from the crime scene did not link the defendant to the crime, it wasnevertheless consistent with the witness's account of the shooting. Under the circumstances, thetestimony of the witness identifying the defendant was "unusually credit-worthy" (id. at970), such that it may be said that there was "no substantial issue on the point" (People vMalloy, 22 NY2d at 567; see People v Johnson, 57 NY2d at 970-971; see alsoPeople v Mobley, 56 NY2d at 585-586). Furthermore, the strength of the witness'sidentification testimony and the fleeting nature of the improper testimony precluded anysignificant probability that the jury would have acquitted the defendant had it not been for theimproper bolstering (see People v Johnson, 57 NY2d at 971; People v Stanley,185 AD2d 827 [1992]; People v Bryan, 179 AD2d 667 [1992]; People v Jenkins,133 AD2d 279 [1987]). Accordingly, the People's impermissible bolstering of the identificationtestimony was harmless in the context of this case.
The defendant's contention that he was denied the effective assistance of counsel is based, inpart, on matter dehors the record, and thus constitutes a "mixed claim" of ineffective assistanceof counsel (People v Maxwell, 89AD3d 1108, 1109 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (see People v Hili, 158 AD3d 647,648 [2018]). Since the defendant's claim of ineffective assistance of counsel cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Crosby, 133 AD3d 681, 682 [2015]; People v Williams, 120 AD3d 721,724 [2014]; People v Addison, 107AD3d 730, 732 [2013]; People vFreeman, 93 AD3d 805, 806 [2012]). Roman, J.P., Miller, Connolly and Iannacci, JJ.,concur.