PEOPLE v. SCOTT (2002)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Golia, J.), rendered August 1, 1996, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree (two counts), assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 The defendant contends that he was deprived of his right to due process because the Supreme Court denied his request to call civilian identification witnesses at the Wade hearing (see, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), and that the showup which led to his arrest was unduly suggestive.   A defendant does not have an absolute unqualified right to call a complaining or identifying witness at a Wade hearing (see, People v. Chipp, 75 N.Y.2d 327, 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. Harvall, 196 A.D.2d 553, 601 N.Y.S.2d 146;  People v. Christenson, 188 A.D.2d 659, 591 N.Y.S.2d 507).   To the contrary, this right is triggered only where the hearing evidence raises substantial issues as to the constitutionality of the identification procedure (see, People v. Chipp, supra), where the People's evidence is “notably incomplete” (see, People v. Hoehne, 203 A.D.2d 480, 610 N.Y.S.2d 579;  People v. Sokolyansky, 147 A.D.2d 722, 538 N.Y.S.2d 69), or where the defendant otherwise establishes a need for the witness's testimony (see, People v. Harvall, supra;  People v. Ocasio, 134 A.D.2d 293, 520 N.Y.S.2d 620).

 Contrary to the defendant's contention, the hearing testimony failed to raise a substantial issue as to the constitutionality of the identification procedure.   Showups that are conducted in close temporal and spatial proximity to the commission of the crime being investigated are generally permissible (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Holley, 205 A.D.2d 638, 613 N.Y.S.2d 232), and given the circumstances of this case, the identification procedure was not unduly suggestive.

The defendant's arguments regarding alleged prosecutorial misconduct during summation are unpreserved for appellate review (see, CPL 470.05[2];  People v. Dien, 77 N.Y.2d 885, 568 N.Y.S.2d 899, 571 N.E.2d 69;  People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111).   In any event, the comments alleged to be inflammatory and prejudicial were either fair comment on the evidence (see, People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564) or responsive to arguments presented in 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).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are unpreserved for appellate review and, in any event, without merit.