PEOPLE v. JENKINS (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered December 1, 2003, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to indeterminate terms of imprisonment of 25 years to life on the conviction of murder in the second degree and 5 to 15 years on the conviction of criminal possession of a weapon in the second degree, to run concurrently with each other.   The appeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is modified, on the law, by (1) reducing the sentence imposed on the conviction of murder in the second degree from an indeterminate term of imprisonment of 25 years to life to an indeterminate term of imprisonment of 15 years to life, and (2) reducing the sentence imposed on the conviction of criminal possession of a weapon in the second degree from an indeterminate term of imprisonment of 5 to 15 years to an indeterminate term of imprisonment of 3 to 9 years;  as so modified, the judgment is affirmed.

 The defendant claims that he was deprived of a fair trial by prosecutorial misconduct during trial and on summation.   However, the defendant's contentions are unpreserved for appellate review (see CPL 470.05 [2];  People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276).   In any event, his claims are without merit as any error was harmless in light of the overwhelming evidence of his guilt (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The defendant contends that the prosecutor erred in not re-presenting the case for indictment to the Grand Jury because the eyewitness recanted his original Grand Jury testimony that he knew the defendant from neighborhood encounters.   The defendant does not have the right to have this issue reviewed on appeal from a judgment of conviction that was based on legally sufficient trial evidence (see CPL 210.30[6];  People v. Nealy, 32 A.D.3d 400, 402, 819 N.Y.S.2d 106;  People v. Perry, 19 A.D.3d 619, 619-620, 800 N.Y.S.2d 25;  People v. Bryant, 234 A.D.2d 605, 652 N.Y.S.2d 300;  People v. Cosme, 228 A.D.2d 515, 644 N.Y.S.2d 310).

Contrary to the defendant's contentions, the prosecution proved by clear and convincing evidence that the eyewitness to the crime identified the defendant in court based on his independent observations during the shooting (see People v. Brown, 293 A.D.2d 686, 741 N.Y.S.2d 791;  People v. Radcliffe, 273 A.D.2d 483, 484, 711 N.Y.S.2d 436;  People v. Fuentes, 240 A.D.2d 511, 658 N.Y.S.2d 442;  People v. Johnson, 211 A.D.2d 730, 731, 621 N.Y.S.2d 372;  People v. Hyatt, 162 A.D.2d 713, 714, 557 N.Y.S.2d 415;  People v. Androvett, 135 A.D.2d 640, 642, 522 N.Y.S.2d 218;  People v. Washington, 111 A.D.2d 418, 489 N.Y.S.2d 380).   Furthermore, under the circumstances of this case, the hearing court properly denied the defendant's application to call an expert witness on the matter of eyewitness identification (see People v. Young, 7 N.Y.3d 40, 46, 817 N.Y.S.2d 576, 850 N.E.2d 623;  People v. Lee, 96 N.Y.2d 157, 162-163, 726 N.Y.S.2d 361, 750 N.E.2d 63;  People v. Brown, 97 N.Y.2d 500, 505, 743 N.Y.S.2d 374, 769 N.E.2d 1266;  People v. Mims, 30 A.D.3d 539, 540, 817 N.Y.S.2d 356).

 However, the Supreme Court erred in enhancing the sentence originally imposed upon the defendant, which sentence was vacated upon Federal habeas corpus review (see Jenkins v. Artuz, 294 F.3d 284).   The record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court's imposition of a sentence greater than that imposed after the initial conviction (see United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74;  People v. Young, 94 N.Y.2d 171, 176, 701 N.Y.S.2d 309, 723 N.E.2d 58;  People v. Van Pelt, 76 N.Y.2d 156, 162, 556 N.Y.S.2d 984, 556 N.E.2d 423;  People v. Moye, 4 A.D.3d 488, 489, 772 N.Y.S.2d 352).

The defendant's remaining contentions are without merit.