PEOPLE v. DOWNS (2006)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered April 7, 2005, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), burglary in the second degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).

The defendant's claim that he was denied the right to a public trial by the court's request that a 12-year old boy be removed from the courtroom is unpreserved for appellate review (cf. People v. Garcia, 95 N.Y.2d 946, 947, 727 N.Y.S.2d 1, 750 N.E.2d 1049;  People v. Nieves, 90 N.Y.2d 426, 660 N.Y.S.2d 858, 683 N.E.2d 764).

 The trial court's restriction on certain areas of cross-examination which had the potential of misleading the jury or addressing collateral matters was a proper exercise of its discretion (see People v. Davis, 258 A.D.2d 528, 685 N.Y.S.2d 455;  People v. Thorpe, 236 A.D.2d 641, 654 N.Y.S.2d 659;  People v. Heung K. Sul, 234 A.D.2d 563, 652 N.Y.S.2d 57;  People v. Delgado, 186 A.D.2d 579, 588 N.Y.S.2d 378).   There is no merit to the defendant's claim that the trial court overstepped the boundaries of the proper exercise of its discretion, or in any way deprived him of a fair trial (cf. People v. Retamozzo, 25 A.D.3d 73, 802 N.Y.S.2d 426).

 The defendant's contention regarding the prosecution's failure to give notice of a witness's intent to testify regarding a pretrial identification procedure pursuant to CPL 710.30 is without merit in light of the particular witness's inability to identify anyone during that procedure (see People v. Gee, 99 N.Y.2d 158, 161-162, 753 N.Y.S.2d 19, 782 N.E.2d 1155;  see People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924;  People v. Pennington, 27 A.D.3d 269, 811 N.Y.S.2d 36).

The defendant's remaining contentions are without merit.