Opinion
2015–00910 Ind. No. 4386/13
12-11-2019
The PEOPLE, etc., Respondent, v. Patrick DAY, Appellant.
Justin C. Bonus, Forest Hills, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Justin C. Bonus, Forest Hills, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A. Gary, J.), rendered January 28, 2015, convicting him of assault in the first degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was convicted of assault in the first degree and robbery in the first degree in connection with a home invasion during which the victim was shot several times.
We agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress identification testimony. The photographic identification procedure, in which the defendant was identified from an array of six photographs, was not unduly suggestive (see People v. Lee , 96 N.Y.2d 157, 163, 726 N.Y.S.2d 361, 750 N.E.2d 63 ; People v. Chipp , 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; People v. Mata , 174 A.D.3d 647, 101 N.Y.S.3d 908 ). Nor was the defendant deprived of a public suppression hearing (see People v. Guevara , 135 A.D.2d 566, 521 N.Y.S.2d 785 ) based upon the court's temporary exclusion of two spectators who knew the defendant and refused to identify themselves when the court attempted to ascertain whether they were potential witnesses in the case (see People v. Baker , 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 ).
However, as the People concede, the prosecutor's comments during summation that the defendant's DNA was found on the weapon used to shoot the victim had no evidentiary support in the record. The remarks, which were promptly objected to by defense counsel, were highly prejudicial and ultimately deprived the defendant of his right to a fair trial (see People v. Powell , 165 A.D.3d 842, 843–844, 84 N.Y.S.3d 563 ; cf. People v. Wright , 25 N.Y.3d 769, 779–780, 16 N.Y.S.3d 485, 37 N.E.3d 1127 ), particularly as the Supreme Court refused to give any curative instruction or grant a mistrial based upon the prosecutor's improper comments.
The defendant's remaining contentions need not be reached in light of our determination.
CHAMBERS, J.P., AUSTIN, LASALLE and BARROS, JJ., concur.