PEOPLE v. BRINK (2006)

 Defendant appeals from a judgment convicting him following a jury trial of, inter alia, robbery in the first degree (Penal Law § 160.15 [2] ), robbery in the second degree (§ 160.10[1] ), and burglary in the first degree (§ 140.30[2] ).   We reject the contention of defendant that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 applies to his pretrial suppression hearing and that reversal is required because his right of confrontation was violated at that hearing.   As the Supreme Court has written, “[t]he right [of] confrontation is basically a trial right” (Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255;  see People v. Robinson, 9 Misc.3d 676, 678-680, 802 N.Y.S.2d 868;  see also United States v. Thompson, 2005 WL 3050634, *4-6 [E.D.Mo., Nov. 14, 2005];  People v. Felder, 129 P.3d 1072, 1073-1074 [Colo.App.];  Vanmeter v. State, 165 S.W.3d 68, 74-75 [Tex.App.] ).   Indeed, “the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself.   At a suppression hearing, the [suppression] court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial” (United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424, reh. denied 448 U.S. 916, 101 S.Ct. 36, 65 L.Ed.2d 1179).

 Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further reject defendant's contention that reversal is required based on prosecutorial misconduct on summation.   Reversal based on prosecutorial misconduct is “ ‘mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he has been denied due process of law’ ” (People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114, quoting People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307), and there is no such substantial prejudice in this case.   Rather, the record establishes that the prosecutor's comments on summation were a fair response to defense counsel's summation (see generally People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Beggs, 19 A.D.3d 1150, 796 N.Y.S.2d 826, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155).

 Also contrary to defendant's contention, County Court properly allowed the People to amend the indictment to correct a typographical error.   The amendment did not change the theory of the prosecution, nor did it “otherwise tend to prejudice the defendant on the merits” (CPL 200.70[1] ).   In addition, the court's Sandoval ruling, pursuant to which the court allowed inquiry into defendant's conviction of rape in the second degree, does not constitute an abuse of discretion (see generally People v. Hayes, 97 N.Y.2d 203, 207-208, 738 N.Y.S.2d 663, 764 N.E.2d 963).   That conviction demonstrated the willingness of defendant to put his own interests before those of society and was therefore relevant to “the question of his veracity” (People v. Bennette, 56 N.Y.2d 142, 148, 451 N.Y.S.2d 647, 436 N.E.2d 1249).   We reject the further contention of defendant that he received ineffective assistance of counsel (see generally People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Here, defendant failed to “ ‘demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings” (Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   The sentence is not unduly harsh or severe.

We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: