Opinion
2018–07032 Ind. No. 598/17
07-27-2022
The PEOPLE, etc., respondent, v. Ralph INGRASSIA, appellant.
Patricia Pazner, New York, NY (Leila Hull of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Rebecca Nealon of counsel), for respondent.
Patricia Pazner, New York, NY (Leila Hull of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Rebecca Nealon of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J.), rendered May 17, 2018, convicting him of burglary in the second degree, criminal mischief in the fourth degree, petit larceny, criminal possession of stolen property in the fifth degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's claim that the People failed to lay a proper foundation pursuant to CPL 60.25 for the admission of third-party testimony regarding the complainant's prior, out-of-court identification of the defendant is preserved for appellate review because the Supreme Court, in response to the defendant's protest, "expressly decided the question raised on appeal" ( CPL 470.05[2] ; see People v. Smith, 22 N.Y.3d 462, 465, 982 N.Y.S.2d 809, 5 N.E.3d 972 ; People v. Cantoni, 140 A.D.3d 782, 782–783, 34 N.Y.S.3d 454 ; cf. People v. Graham, 25 N.Y.3d 994, 997, 10 N.Y.S.3d 172, 32 N.E.3d 387 ). Nevertheless, the defendant's claim is without merit. The record, as a whole, supports the court's finding that the complainant lacked sufficient present recollection to make an in-court identification, and thus, the third-party testimony regarding the prior identification was properly admitted (see People v. Roscher, 114 A.D.3d 812, 812, 980 N.Y.S.2d 146 ; People v. Robinson, 39 A.D.3d 772, 772, 833 N.Y.S.2d 653 ; People v. Mitchell, 143 A.D.2d 421, 422, 532 N.Y.S.2d 428 ).
The defendant's contention that certain remarks made by the prosecutor during her opening statement and summation were improper and deprived him of a fair trial is unpreserved for appellate review since he failed to object to the remarks at issue (see CPL 470.05[2] ; People v. Ortiz, 189 A.D.3d 891, 892, 137 N.Y.S.3d 139 ). In any event, most of the challenged remarks constituted fair comment on the evidence, fair response to arguments and theories presented in defense counsel's summation, or were permissible rhetorical comment (see People v. Anderson, 197 A.D.3d 713, 713–714, 150 N.Y.S.3d 584 ; People v. Stone, 185 A.D.3d 967, 969, 125 N.Y.S.3d 867 ). To the extent that some of the prosecutor's remarks were improper, they were not so pervasive or egregious as to deprive the defendant of a fair trial, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Macon, 200 A.D.3d 907, 907, 155 N.Y.S.3d 363 ; People v. Roscher, 114 A.D.3d at 813, 980 N.Y.S.2d 146 ).
The defendant's contention that he was denied the effective assistance of counsel is without merit. The defendant's remaining contentions are unpreserved for appellate review, and, in any event, without merit.
DILLON, J.P., ROMAN, MALTESE and GENOVESI, JJ., concur.