PEOPLE v. CORCHADO (2002)

On appeal from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15[1] ) and criminal possession of a weapon in the third degree (§ 265.02 [former (4) ] ), defendant contends that County Court erred in summarily denying his motion for a new trial pursuant to CPL 330.30.   We disagree.   The court properly determined that the testimony submitted by defendant in support of that motion was not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30[3];  see People v. Salemi, 309 N.Y. 208, 215-216, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;  People v. Epps, 284 A.D.2d 996, 997, 728 N.Y.S.2d 607).   The court therefore properly denied the motion without a hearing (see Epps, 284 A.D.2d at 997, 728 N.Y.S.2d 607;  People v. Nicholson, 269 A.D.2d 868, 704 N.Y.S.2d 432, lv. denied 95 N.Y.2d 907, 716 N.Y.S.2d 647, 739 N.E.2d 1152;  People v. Castleberry, 265 A.D.2d 921, 922, 697 N.Y.S.2d 215, lv. denied 94 N.Y.2d 902, 707 N.Y.S.2d 386, 728 N.E.2d 985).

 Contrary to the contention of defendant, the court properly denied his motion seeking suppression of the identification evidence. Photographs of the two lineups establish that the subjects were of similar age, height and build, and had similar skin color and facial characteristics (see People v. Rayford, 291 A.D.2d 833, 834, 736 N.Y.S.2d 922, lv. denied 98 N.Y.2d 680, 746 N.Y.S.2d 469, 774 N.E.2d 234;  see generally People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   The minor differences in the ages and physical characteristics of defendant and the others in the lineup were “not sufficient to create a substantial likelihood that the defendant would be singled out for identification” (Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608;  see Rayford, 291 A.D.2d at 834, 736 N.Y.S.2d 922;  see also People v. Freeney, 291 A.D.2d 913, 737 N.Y.S.2d 751, lv. denied 98 N.Y.2d 637, 744 N.Y.S.2d 766, 771 N.E.2d 839).   Contrary to defendant's further contention, the People had no burden to come forward with independent source evidence absent a showing by defendant that the pretrial identification procedures were impermissibly suggestive (see People v. Burts, 78 N.Y.2d 20, 24, 571 N.Y.S.2d 418, 574 N.E.2d 1024;  Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608).

 We reject defendant's contention that the court erred in admitting the police officers' hearsay testimony in evidence (see People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014, citing People v. Till, 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 661 N.E.2d 153).   The officers' testimony served to “complete the narrative of events leading up to defendant's apprehension” (People v. Justice, 202 A.D.2d 362, 362, 610 N.Y.S.2d 4, lv. denied 83 N.Y.2d 1004, 616 N.Y.S.2d 486, 640 N.E.2d 154;  see People v. Singletary, 270 A.D.2d 903, 706 N.Y.S.2d 551, lv. denied 95 N.Y.2d 838, 713 N.Y.S.2d 145, 735 N.E.2d 425;  People v. Shaw, 232 A.D.2d 174, 175, 647 N.Y.S.2d 751, lv. denied 89 N.Y.2d 946, 655 N.Y.S.2d 897, 678 N.E.2d 510).   Any error in the court's admission of bolstering testimony (see CPL 60.25;  People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82;  People v. Trowbridge, 305 N.Y. 471, 474-476, 113 N.E.2d 841) is harmless.   There is overwhelming evidence of defendant's guilt, including the strong identification testimony of multiple eyewitnesses and the positive results of the gunshot residue testing performed on defendant's clothing, and there is no significant probability that defendant would have been acquitted but for the error (see People v. Elliott, 294 A.D.2d 870, 740 N.Y.S.2d 918;  People v. Alshoaibi, 273 A.D.2d 871, 872, 711 N.Y.S.2d 646, lv. denied 95 N.Y.2d 960, 722 N.Y.S.2d 477, 745 N.E.2d 397;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Contrary to the further contentions of defendant, there is no basis for reversal based upon the alleged omission of material information from the warrant application (see generally Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667;  People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644), and the court did not err in denying his request for an impaired witness instruction (see People v. DiBlasio, 149 A.D.2d 527, 528, 539 N.Y.S.2d 807, lv. denied 74 N.Y.2d 739, 545 N.Y.S.2d 113, 543 N.E.2d 756).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: