PEOPLE v. THOMPSON (2025)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered October 18, 2022, convicting defendant, after a jury trial, of burglary in the first degree (two counts), assault in the first degree (two counts), and endangering the welfare of a child (three counts), and sentencing her to an aggregate prison term of 25 years and five years of post-release supervision, unanimously affirmed.

The court properly denied defendant's motion to suppress identifications made by two of the eyewitnesses.  The photo array procedures were not unduly suggestive such that there was a reasonable likelihood that defendant would be singled out for identification (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990]).  All the photos in the arrays depicted women of generally similar appearance (see id.), and defendant's darker skin tone did not cause her image to stand out unfairly (see People v. Villa, 174 A.D.3d 438, 439, 103 N.Y.S.3d 425 [1st Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 753, 138 N.E.3d 482 [2019]).  Although the backgrounds of the photos were varying shades of grey and the background of defendant's photo was lighter than that of the others, “the color difference did not highlight defendant's photo” (People v. Carter, 214 A.D.3d 420, 420, 184 N.Y.S.3d 53 [1st Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 658, 217 N.E.3d 678 [2023]).

The court's COVID–19 safety protocols, which permitted jurors to wear masks covering the nose and mouth during the jury selection process and lower their masks while being questioned by the attorneys, did not deprive defendant of the ability to meaningfully participate in jury selection (People v. Ramirez, 41 N.Y.3d 406, 413, 211 N.Y.S.3d 251, 234 N.E.3d 1043 [2024], cert denied ––– U.S. ––––, 144 S.Ct. 2698, 219 L.Ed.2d 1307 [2024];  People v. Rodriguez, 235 A.D.3d 541, 541–42, 228 N.Y.S.3d 437 [1st Dept. 2025], lv denied 43 N.Y.3d 1011, 234 N.Y.S.3d 799, 261 N.E.3d 934 [2025]).  Defendant did not preserve any claim that her right to confront adverse witnesses was violated by the court's masking protocols, and we decline to consider it in the interest of justice (see People v. Johnson, 117 A.D.3d 637, 638–39, 987 N.Y.S.2d 312 [1st Dept. 2014], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015]).

Defendant's legal insufficiency claim challenging the evidence of identity is unpreserved, and we decline to review it in the interest of justice (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008];  People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]).  As an alternative holding, we reject the insufficiency claim on the merits.  The evidence, including the testimony and identifications of two eyewitnesses and the video surveillance footage, demonstrated that defendant was the person who knowingly and unlawfully entered the apartment and repeatedly slashed the child victim's face (see Penal Law §§ 140.30, 120.10).

Several of defendant's present challenges to the prosecutor's summation are unpreserved, and we decline to consider them in the interest of justice (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006];  People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994]).  As an alternative holding, we find that the prosecutor's summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 136, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]).  In response to defense counsel's arguments challenging the identification procedures, the credibility of the witnesses, and the surveillance videos, the prosecutor permissibly marshaled the evidence, commented on the witnesses’ testimony, and urged the jury to review the surveillance video footage and compare it to other evidence.  These remarks “constituted fair comment on the evidence and reasonable inferences to be drawn therefrom” (People v. Harkless, 238 A.D.3d 646, 647, 235 N.Y.S.3d 284 [1st Dept. 2025]).  The prosecutor's suggestion that defense counsel's cross examinations and arguments focused on collateral matters, diverting the jury from relevant issues, “did not exceed the broad bounds of rhetorical comment permissible in summation” (People v. Torres, 220 A.D.2d 269, 270, 632 N.Y.S.2d 115 [1st Dept. 1995], lv denied 87 N.Y.2d 925, 641 N.Y.S.2d 607, 664 N.E.2d 518 [1996]).

Defendant's Eighth Amendment claim is unpreserved, and in any event without merit (see People v. Ingram, 67 N.Y.2d 897, 899, 501 N.Y.S.2d 804, 492 N.E.2d 1220 [1986];  People v. Fraser, 162 A.D.3d 480, 482, 78 N.Y.S.3d 92 [1st Dept. 2018], lv denied 32 N.Y.3d 1111, 91 N.Y.S.3d 362, 115 N.E.3d 634 [2018]).

We perceive no basis for reducing her sentence in the interest of justice.