PEOPLE v. FRANKLIN (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered November 13, 2006, convicting him of assault in the first 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 Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony.   Contrary to the defendant's contention, the evidence presented by the People demonstrated that the police had probable cause to arrest him (see CPL 140.10[1][b];  People v. Parris, 83 N.Y.2d 342, 349, 610 N.Y.S.2d 464, 632 N.E.2d 870;  People v. Maldonado, 55 A.D.3d 626, 865 N.Y.S.2d 316).   Furthermore, the lineup in which defendant participated was not unduly suggestive (see People v. Jean-Baptiste, 57 A.D.3d 566, 868 N.Y.S.2d 724;  People v. Cusimano, 48 A.D.3d 475, 851 N.Y.S.2d 629).   The defendant's physical characteristics were sufficiently similar to those of the other participants in the lineup as to negate any likelihood that the defendant would be singled out for identification (see People v. Jean-Baptiste, 57 A.D.3d at 566, 868 N.Y.S.2d 724;  see also People v. Marshall, 51 A.D.3d 821, 859 N.Y.S.2d 664).

The defendant's contention that various comments made by the prosecutor during his summation were improper and denied him a fair trial is unpreserved for appellate review, as the defendant either did not object to the remarks at issue or made only general objections, or his objections were sustained without any further request for curative instructions, and he failed to move for a mistrial (see People v. Philbert, 60 A.D.3d 698, 699, 874 N.Y.S.2d 540;  People v. Dashosh, 59 A.D.3d 731, 873 N.Y.S.2d 730, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587;  People v. Boyce, 54 A.D.3d 1052, 1053, 866 N.Y.S.2d 203).   In any event, most of the challenged remarks constituted fair comment on the evidence or were responsive to defense counsel's summation (see People v. Philbert, 60 A.D.3d at 699, 874 N.Y.S.2d 540;  People v. Nisvis, 56 A.D.3d 574, 867 N.Y.S.2d 192;  People v. Forest, 52 A.D.3d 733, 858 N.Y.S.2d 912).   To the extent that certain of the remarks were improper, they were not so egregious as to deprive the defendant of a fair trial (see People v. Philbert, 60 A.D.3d at 698, 874 N.Y.S.2d 540;  People v. Nisvis, 56 A.D.3d at 574, 867 N.Y.S.2d 192).

The defendant's remaining claims of prosecutorial misconduct are unpreserved for appellate review (see People v. Daley, 50 A.D.3d 1051, 855 N.Y.S.2d 678) and, in any event, are without merit.

The defendant's remaining contentions are without merit.