PEOPLE v. PARKER (2018)

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered July 29, 2014, convicting defendant, after a jury trial, of murder in the second degree and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 20 years to life, unanimously affirmed.

The court properly denied defendant's motion to suppress out-of-court and in-court identifications by an eyewitness to the shooting.  Although detectives failed to preserve records of a computer-generated series of photographs ¹ displayed to the witness, and although the witness subsequently identified defendant from a single photo, the People met their burden of establishing that the identification was confirmatory, thus rendering moot any suggestiveness in the identification procedure (see People v. Rodriguez, 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992];  People v. Bryant, 253 A.D.2d 672, 678 N.Y.S.2d 316 [1st Dept. 1998], lv denied 92 N.Y.2d 980, 683 N.Y.S.2d 761, 706 N.E.2d 749 [1998] ).  Two detectives testified at the hearing that the eyewitness had told them he had seen defendant in the neighborhood “all the time” in the two years preceding the murder, that he was “always associated with” another man whom the eyewitness knew since childhood, and that he had been in two fights with defendant before the murder, one a month or two earlier, and one on the same day.  That testimony sufficed, and testimony from the identifying witness was unnecessary under the circumstances.  There is no basis for disturbing the hearing court's credibility determinations.

Defendant did not preserve any of his challenges to the prosecutor's summation, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal.  The vast majority of comments were responsive to defense counsel's attacks on the credibility of prosecution witnesses (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 [1993] ).  To the extent that a few isolated comments might be deemed error, there was no pattern of inflammatory remarks, nor any conduct so egregious as to warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

We perceive no basis for reducing the sentence.

FOOTNOTES

1.   In addition, the evidence shows that defendant's photo was not among those included in the computer-generated array.