PEOPLE v. DAVIS (2002)

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[3] ) and other crimes.   Contrary to defendant's contention, Supreme Court properly ordered defendant to participate in the lineup in which he was identified by the victim's fiancé (see People v. Shields, 155 A.D.2d 978, 547 N.Y.S.2d 783, lv. denied 75 N.Y.2d 818, 552 N.Y.S.2d 568, 551 N.E.2d 1246;  see generally Matter of Abe A., 56 N.Y.2d 288, 290-291, 452 N.Y.S.2d 6, 437 N.E.2d 265).   Although the fill-ins who participated in the lineup were not the same as those who had been included in a previous photo array from which the victim's fiancé had identified someone other than defendant, “the fill-ins used in the photo array[ ] and in the lineup procedure were sufficiently similar to defendant in appearance [and] there was no reasonable possibility that the attention of the [witness] would be drawn to him as the suspect chosen by the police” (People v. Hall, 177 A.D.2d 951, 951, 577 N.Y.S.2d 996, lv. denied 79 N.Y.2d 948, 583 N.Y.S.2d 202, 592 N.E.2d 810;  see generally People v. Chipp, 75 N.Y.2d 327, 335-336, 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).   Indeed, the use of different fill-ins was particularly appropriate where, as here, there had been “significant changes in defendant's appearance between the time of the photograph and lineup” (People v. Rodriguez, 64 N.Y.2d 738, 741, 485 N.Y.S.2d 976, 475 N.E.2d 443).   Defendant failed to object to the testimony of the victim's fiancé with respect to the lineup on the ground that it constituted impermissible bolstering and thus has failed to preserve for our review his present contention that the court erred in admitting the testimony on that ground (see People v. Grimes, 289 A.D.2d 1072, 735 N.Y.S.2d 857;  see also People v. West, 56 N.Y.2d 662, 663, 451 N.Y.S.2d 711, 436 N.E.2d 1313).   In any event, the People were properly allowed to present that testimony as “evidence in chief” (CPL 60.30).

 Defendant further contends that the court erred in summarily denying his motion to “inspect the grand jury minutes to insure that the People adhered to procedural due process protections.”   We disagree.  “ ‘It is a defendant's burden to demonstrate * * * the existence of defects impairing the integrity of the Grand Jury proceeding and giving rise to a possibility of prejudice’, and defendant failed to meet that burden” (People v. Wood [Chester], 291 A.D.2d 824, 737 N.Y.S.2d 760, quoting People v. Santmyer, 255 A.D.2d 871, 871-872, 680 N.Y.S.2d 367, lv. denied 93 N.Y.2d 902, 689 N.Y.S.2d 714, 711 N.E.2d 990;  see People v. McGee, 294 A.D.2d 937, 741 N.Y.S.2d 779).

The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to defendant's further contention, the comments of the prosecutor in summation were either fair comment on the evidence or fair response to defense counsel's summation (see People v. Howard, 195 A.D.2d 1082, 1083, 600 N.Y.S.2d 544, lv. denied 82 N.Y.2d 755, 603 N.Y.S.2d 997, 624 N.E.2d 183).

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

MEMORANDUM: