Opinion
2013-04168. Ind. No. 1803/12.
06-21-2017
The PEOPLE, etc., respondent, v. Darrius LEE, appellant.
Lynn W.L. Fahey, New York, NY (Nao Terai and Dina Zloczower of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Antara D. Kanth of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Nao Terai and Dina Zloczower of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Antara D. Kanth of counsel), for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme
Court, Queens County (Hollie, J.), rendered March 18, 2013, convicting him of robbery in the first degree (two counts), criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the testimony of police witnesses recounting the location of the defendant's bedroom in the house that was searched, based on information given to them by a nontestifying witness, violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. This contention is unpreserved for appellate review, as the defendant did not object to the testimony on those grounds (see People v. Walker, 70 A.D.3d 870, 871, 894 N.Y.S.2d 156 ; People v. Chandler, 59 A.D.3d 562, 872 N.Y.S.2d 283 ). The contention is, in any event, without merit (see People v. Walker, 70 A.D.3d at 871, 894 N.Y.S.2d 156 ; People v. Speaks, 124 A.D.3d 689, 691–692, 1 N.Y.S.3d 257, affd. 28 N.Y.3d 990, 42 N.Y.S.3d 644, 65 N.E.3d 673 ). The defendant's contentions that the testimony about the location of his bedroom given by one detective constituted improper bolstering is also unpreserved for appellate review, as the defendant did not object to the testimony on that ground (see People v. Walker, 70 A.D.3d at 871, 894 N.Y.S.2d 156 ; People v. Chandler, 59 A.D.3d 562, 872 N.Y.S.2d 283 ), and it is, in any event, without merit (see People v. Speaks, 124 A.D.3d at 692, 1 N.Y.S.3d 257 ). Additionally, with respect to the hearsay objection which was raised to the testimony about the location of the defendant's bedroom based on information given to the police witnesses by the nontestifying witness, the jury was specifically instructed not to consider the description for its truth. The jury is presumed to have followed that instruction, alleviating any possible prejudice suffered by the defendant related to the admission of the description (see People v. Berg, 59 N.Y.2d 294, 464 N.Y.S.2d 703, 451 N.E.2d 450 ).
The Supreme Court properly declined to charge the jury on the unreliability of cross-racial identification, as the defendant never placed the issue in evidence during the trial (see People v. Boone, 129 A.D.3d 1099, 11 N.Y.S.3d 687, lv. granted 26 N.Y.3d 1086, 23 N.Y.S.3d 642, 44 N.E.3d 940 ; People v. Best, 120 A.D.3d 707, 708, 991 N.Y.S.2d 441 ; cf. People v. Alexander, 94 N.Y.2d 382, 385, 705 N.Y.S.2d 551, 727 N.E.2d 109 ), and the court's charge correctly conveyed the applicable legal principles on witness credibility and identification testimony (see People v. Boone, 129 A.D.3d 1099, 11 N.Y.S.3d 687 ; People v. Washington, 56 A.D.3d 258, 259, 867 N.Y.S.2d 63 ; People v. Applewhite, 298 A.D.2d 136, 137, 748 N.Y.S.2d 4 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.