Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Charles KERCE, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree (Penal Law § 140.30[4] ) and robbery in the first degree (§ 160.15[4] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We reject defendant's contention that the photo identification procedure was unduly suggestive, and County Court therefore properly refused to suppress the identification testimony of the victim. The subjects in the photo array were sufficiently similar in appearance, and “[t]he fact that defendant's photograph has a slightly lighter background than the others does not support the conclusion that the identification procedure was unduly suggestive” (People v. Burns, 186 A.D.2d 1015, 1016, 590 N.Y.S.2d 785, lv. denied 81 N.Y.2d 837, 595 N.Y.S.2d 736, 611 N.E.2d 775 ; see People v. Redding, 132 A.D.3d 700, 700, 17 N.Y.S.3d 495 ). We reject defendant's further contention that the court erred in determining that the identification of defendant by another witness was confirmatory. The testimony of the witness at the Rodriguez hearing established that the witness had known defendant for approximately 20 years (see
People v. Williams, 101 A.D.3d 1730, 1731–1732, 957 N.Y.S.2d 548, lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 ; People v. Whitlock, 95 A.D.3d 909, 911, 943 N.Y.S.2d 227, lv. denied 19 N.Y.3d 978, 950 N.Y.S.2d 361, 973 N.E.2d 771 ; see generally People v. Rodriguez, 79 N.Y.2d 445, 452, 583 N.Y.S.2d 814, 593 N.E.2d 268 ). The court properly refused to preclude the identification testimony of the witness based on the People's failure to provide notice pursuant to CPL 710.30. Inasmuch as the witness's identification was confirmatory, no notice was required (see People v. Boyer, 6 N.Y.3d 427, 431–432, 813 N.Y.S.2d 31, 846 N.E.2d 461 ; Rodriguez, 79 N.Y.2d at 452, 583 N.Y.S.2d 814, 593 N.E.2d 268 ; People v. Tas, 51 N.Y.2d 915, 916, 434 N.Y.S.2d 978, 415 N.E.2d 967 ; cf. People v. Pacquette, 25 N.Y.3d 575, 580, 14 N.Y.S.3d 775, 35 N.E.3d 845 ).
Contrary to defendant's contention, the court properly allowed a witness to testify to statements made by defendant and another man because the statements qualified as adoptive admissions (see People v. Campney, 94 N.Y.2d 307, 311–312, 704 N.Y.S.2d 916, 726 N.E.2d 468 ; People v. Harper, 132 A.D.3d 1230, 1234, 17 N.Y.S.3d 797 ). Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct based on the prosecutor's cross-examination of a witness and defendant and his comments during summation. Defendant's contention is preserved for our review only in part inasmuch as he failed to object to the majority of the prosecutor's alleged improprieties (see People v. Jemes, 132 A.D.3d 1361, 1362–1363, 17 N.Y.S.3d 539, lv. denied 26 N.Y.3d 1110, 26 N.Y.S.3d 768, 47 N.E.3d 98 ; People v. Jones, 114 A.D.3d 1239, 1241, 980 N.Y.S.2d 670, lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507, 25 N.Y.3d 1166, 15 N.Y.S.3d 298, 36 N.E.3d 101). In any event, defendant's contention is without merit. “Reversal based on prosecutorial misconduct is ‘mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he has been denied due process of law’ ” (People v. Jacobson, 60 A.D.3d 1326, 1328, 876 N.Y.S.2d 259, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 ) and, here, “[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial” (Jones, 114 A.D.3d at 1241, 980 N.Y.S.2d 670 [internal quotation marks omitted]; see People v. Ielfield, 132 A.D.3d 1298, 1299–1300, 18 N.Y.S.3d 229 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.