Opinion
2014-03-5
The PEOPLE, etc., respondent, v. Jack RHODES, appellant.
Steven Banks, New York, N.Y. (Denise Fabiano of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel), for respondent.
Steven Banks, New York, N.Y. (Denise Fabiano of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered December 2, 2009, convicting him of burglary in the first degree as a hate crime, robbery in the first degree as a hate crime, robbery in the second degree as a hate crime, burglary in the first degree (two counts), robbery in the first degree, robbery in the second degree, and assault in the second degree (four counts), 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 affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's request to call an identifying witness at the Wade hearing ( see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149). The defendant did not raise any substantial issues regarding the constitutionality of the identification, the People's evidence was not notably incomplete, and the defendant did not otherwise establish a need for this testimony ( see People v. Benson, 38 A.D.3d 563, 564, 831 N.Y.S.2d 266;People v. Gant, 26 A.D.3d 516, 517, 809 N.Y.S.2d 584;People v. Fox, 11 A.D.3d 709, 710, 784 N.Y.S.2d 565;People v. Scott, 290 A.D.2d 522, 522, 736 N.Y.S.2d 691).
The Supreme Court providently exercised its discretion in precluding the defendant from presenting expert testimony on the reliability of eyewitness identifications. Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimonyis (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” ( People v. LeGrand, 8 N.Y.3d 449, 452, 835 N.Y.S.2d 523, 867 N.E.2d 374;see People v. Santiago, 17 N.Y.3d 661, 669, 934 N.Y.S.2d 746, 958 N.E.2d 874). Here, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony, including, inter alia, independent identifications by two witnesses other than the three complainants, surveillance videos, and the defendant's incriminatory statements to police officers ( see People v. Abney, 13 N.Y.3d 251, 269, 889 N.Y.S.2d 890, 918 N.E.2d 486;People v. Young, 7 N.Y.3d 40, 46, 817 N.Y.S.2d 576, 850 N.E.2d 623;People v. Lee, 96 N.Y.2d 157, 163, 726 N.Y.S.2d 361, 750 N.E.2d 63;People v. Rodriguez, 98 A.D.3d 530, 532, 949 N.Y.S.2d 441;People v. Fernandez, 78 A.D.3d 726, 726–727, 910 N.Y.S.2d 140).
The Supreme Court providently exercised its discretion in placing a time limit on the cross-examination of a certain prosecution witness ( see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674;Fenenbock v. Director of Corr. for Cal., 692 F.3d 910, 920 [9th Cir.];United States v. Vest, 116 F.3d 1179, 1186–1188 [7th Cir.],cert. denied 522 U.S. 1119, 118 S.Ct. 1058, 140 L.Ed.2d 120;People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 247 N.E.2d 642,cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96;People v. Rivera, 98 A.D.3d 529, 529, 948 N.Y.S.2d 912;People v. Gaviria, 67 A.D.3d 701, 701–702, 886 N.Y.S.2d 900;see also People v. Knowles, 88 N.Y.2d 763, 766, 650 N.Y.S.2d 617, 673 N.E.2d 902). Under the circumstances of this case, the defendant's contention that he was deprived of his constitutional rights of confrontation and due process is without merit.
The defendant's contention that certain allegedly improper comments made by the prosecutor during his summation deprived the defendant of a fair trial is largely unpreserved for appellate review ( seeCPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;People v. Crosdale, 103 A.D.3d 749, 750, 962 N.Y.S.2d 160;People v. Parker–Davidson, 89 A.D.3d 1114, 933 N.Y.S.2d 603). In any event, most of the challenged remarks were proper because they were within the broad bounds of rhetorical comment permissible in closing arguments, responsive to arguments made by defense counsel in summation, or constituted fair comment on the evidence ( see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Stewart, 89 A.D.3d 1044, 1045, 933 N.Y.S.2d 112). To the extent that one spontaneous comment made in response to the defendant's outburst was improper, it was sufficiently addressed by the Supreme Court's instructions to the jury ( see People v. Hines, 102 A.D.3d 889, 890, 958 N.Y.S.2d 724;People v. Flowers, 102 A.D.3d 885, 886, 958 N.Y.S.2d 206;People v. Evans, 291 A.D.2d 569, 569, 738 N.Y.S.2d 244) and was not so flagrant or pervasive as to deprive the defendant of a fair trial ( see People v. Ward, 106 A.D.3d 842, 843, 964 N.Y.S.2d 642;People v. Philbert, 60 A.D.3d 698, 699, 874 N.Y.S.2d 540;People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95).
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 contention is unpreserved for appellate review and, in any event, without merit. ENG, P.J., BALKIN, SGROI and COHEN, JJ., concur.