PEOPLE v. SANTIAGO (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered June 24, 1997, convicting him of robbery in the first degree, robbery in the second degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 It is well settled that a defendant does not have an absolute, unqualified right to examine the complaining or identifying witness at a Wade hearing (see, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149;  People v. Chipp, 75 N.Y.2d 327, 337, 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;  People v. Christenson, 188 A.D.2d 659, 591 N.Y.S.2d 507).   To the contrary, this right is generally triggered only when the hearing record raises substantial issues as to the constitutionality of the identification procedure (see, People v. Chipp, supra), where the People's evidence is “ ‘notably incomplete’ ” (People v. Sokolyansky, 147 A.D.2d 722, 723, 538 N.Y.S.2d 69, citing People v. Ocasio, 134 A.D.2d 293, 294, 520 N.Y.S.2d 620), or where the defendant otherwise establishes a need for the witness's testimony (see, People v. Ocasio, supra).   Contrary to the defendant's contention, the testimony presented at the Wade hearing did not raise a substantial issue as to the constitutionality of the identification procedures.

 The defendant's claims of prosecutorial misconduct during the opening and closing statements refer to issues which are largely unpreserved for appellate review (see, CPL 470.05[2] ).   In any event, the challenged comments did not constitute reversible error.   A prosecutor has broad latitude during summation, particularly when responding to the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885).   Most of the prosecutor's remarks in the case at bar can be characterized as fair response to the defense counsel's summation, and as accurately reflecting the testimony at the trial (see, People v. Rosario, 195 A.D.2d 577, 601 N.Y.S.2d 836;  People v. Rivera, 158 A.D.2d 723, 552 N.Y.S.2d 171).   In any event, the court's forceful instructions after each alleged improper comment ameliorated any prejudice that might have resulted from the prosecutor's statements (see, People v. Rodriguez, 174 A.D.2d 763, 571 N.Y.S.2d 786;  see also, People v. Brian West, 237 A.D.2d 470, 655 N.Y.S.2d 570).   Moreover, the evidence of the defendant's guilt was overwhelming, rendering any error harmless (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  cf., People v. Cruz, 98 A.D.2d 726, 469 N.Y.S.2d 138).

 Furthermore, the defendant's allegation that the testimony of a police officer bolstered the complainant's identification testimony in violation of the principles enunciated in People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841, is without merit since the testimony does not refer to the victim's identification of the defendant (see, People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313;  People v. Moore, 159 A.D.2d 521, 522, 552 N.Y.S.2d 389).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.