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holding that the defendant's bolstering claim was "without merit because the officers did not testify concerning the complainant's identification of defendant"
Summary of this case from Tavarez v. ArtusOpinion
KA 99-05124
October 1, 2002.
Appeal from a judgment of Cayuga County Court (Corning, J.), entered January 21, 1999, convicting defendant after a jury trial of, inter alia, kidnapping in the second degree.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
BRIAN MARTINEZ, DEFENDANT-APPELLANT PRO SE.
JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of kidnapping in the second degree (Penal Law § 135.20), assault in the second degree (§ 120.05 [6]), reckless endangerment in the first degree (§ 120.25), and criminal possession of a weapon in the fourth degree (§ 265.01 [2]), arising from his abduction of a woman whom he forced at knife-point into the trunk of his automobile. Contrary to defendant's contention, the photo array from which the victim identified defendant was not unduly suggestive and thus County Court properly denied defendant's motion to suppress that identification ( see People v. Grimes, 289 A.D.2d 1072, 1072, lv denied 97 N.Y.2d 755). The six subjects in the photo array were of similar age and appearance ( see id.; People v. Young, 281 A.D.2d 905, 905-906, lv denied 96 N.Y.2d 909; People v. Owens, 275 A.D.2d 905, lv denied 95 N.Y.2d 937). Furthermore, although the hairstyles of the men depicted in the array are not identical, "`[t]he viewer's attention is not drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection'" ( People v Levy, 281 A.D.2d 984, 984, lv denied 96 N.Y.2d 831, quoting People v. Rogers, 245 A.D.2d 1041, 1041).
The court also properly denied the motion of defendant to suppress the physical evidence seized from the trunk of his automobile pursuant to a search warrant. Contrary to defendant's contention, the court properly determined that there was probable cause for issuance of the warrant. "In order to establish probable cause, a warrant application `must provide the Magistrate with information sufficient to support a reasonable belief that evidence of a crime may be found in a certain place'" ( People v. Montague, 273 A.D.2d 840, 841, quoting People v. McCulloch, 226 A.D.2d 848, 849, lv denied 88 N.Y.2d 1070). Here, the warrant application was supported by the unsworn statement of the victim identifying defendant as the person who abducted her, together with the sworn statements of defendant's roommate and defendant's brother. A magistrate issuing a search warrant may reasonably rely on hearsay information supplied by an identified citizen particularly where, as here, the information consists of the firsthand knowledge of the victim ( see People v. Lindsay, 123 A.D.2d 719, 720, lv denied 69 N.Y.2d 713; see also People v. Hetrick, 80 N.Y.2d 344, 349; People v. Cantre, 95 A.D.2d 522, 526, affd 65 N.Y.2d 790). In any event, we further conclude that the court properly determined in the alternative that defendant's brother had authority to consent to the search of the automobile because defendant had entrusted it to him and that the police had properly obtained the consent of defendant's brother to search the automobile ( see People v. Adams, 53 N.Y.2d 1, 8-10, rearg denied 54 N.Y.2d 832, cert denied 454 U.S. 854; People v. Muscoreil, 214 A.D.2d 953, 953, lv denied 86 N.Y.2d 799, cert denied 516 U.S. 1059).
Defendant failed to preserve for our review his contention that photographs of two men who had been ruled out as suspects by the police and a videotape taken from a local convenience store constitute Brady material ( see CPL 470.05). In any event, the photographs and videotape do not constitute Brady material because they are not exculpatory ( see People v. Holloman, 291 A.D.2d 917, 918 , lv denied 98 N.Y.2d 638). Contrary to defendant's further contention, those items do not constitute Rosario material because neither is a statement made by a prosecution witness ( see People v. Wilson, 210 A.D.2d 520, 521, lv denied 85 N.Y.2d 982; see also 240.45 [1] [a]; People v. Quinones, 228 A.D.2d 796, 798).
We reject defendant's further contention that the court erred in restricting defense counsel's voir dire of prospective jurors concerning the issue of eyewitness testimony. It is well established that it is not the province of counsel to question prospective jurors concerning their attitudes on matters of law ( see People v. Boulware, 29 N.Y.2d 135, 141, rearg denied 29 N.Y.2d 670, cert denied 405 U.S. 995; Simet v. New Rochelle Hosp. Med. Ctr., 150 A.D.2d 554, 554-555). We conclude that the court properly exercised its discretion in imposing reasonable limitations on defense counsel's questioning of prospective jurors during voir dire concerning the legal issue of eyewitness testimony ( see Boulware, 29 N.Y.2d at 140-142; People v. Byrd, 284 A.D.2d 201, lv denied 97 N.Y.2d 679). We further conclude that the court did not err in charging the jury with respect to evidence of flight. "The limited probative force of flight evidence * * * is no reason for its exclusion" ( People v. Yazum, 13 N.Y.2d 302, 304, rearg denied 15 N.Y.2d 679), and here there was sufficient evidence of flight to warrant a charge on such evidence ( see People v. Blasini, 253 A.D.2d 886, 887, lv denied 92 N.Y.2d 1028). In addition, the court properly charged the jury that evidence of flight is of slight value and that flight may have an innocent explanation ( see generally People v. Elmore, 236 A.D.2d 851, 852, lv denied 89 N.Y.2d 1034; People v. Knight, 174 A.D.2d 1008, lv denied 78 N.Y.2d 1012).
The record does not support the further contention of defendant that a blood sample was taken from him by the use of physical force prior to receipt of the court order authorizing such action.
The testimony of a police officer that he obtained a "picture" of defendant does not constitute a violation of the court's Sandoval ruling. Even assuming, arguendo, that the jury inferred from that testimony that defendant had a criminal record, we conclude that any error in the admission of that testimony is harmless. The evidence of defendant's guilt is overwhelming, and there is no significant probability that he otherwise would have been acquitted ( see People v. Kelly, 201 A.D.2d 668, 669, lv denied 83 N.Y.2d 1005; see also People v. Young, 291 A.D.2d 578, lv denied 98 N.Y.2d 657; see generally People v. Crimmins, 36 N.Y.2d 230, 241-242). Defendant failed to preserve for our review his contention that the testimony of the police officers improperly bolstered the complainant's identification testimony ( see People v. West, 56 N.Y.2d 662). In any event, that contention is without merit because the officers did not testify concerning the complainant's identification of defendant ( see People v. Santiago, 265 A.D.2d 351, 352, lv denied 94 N.Y.2d 884). Finally, we conclude that the sentence is not unduly harsh nor severe.
We have reviewed the contentions raised in defendant's pro se supplemental brief and conclude that they have no merit.