PEOPLE v. CARRIERI (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered June 21, 2004, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the record supports the finding of the hearing court that there was probable cause for his arrest (see People v. Nieves, 26 A.D.3d 519, 520, 809 N.Y.S.2d 586;  People v. Rios, 11 A.D.3d 641, 642, 782 N.Y.S.2d 863;  People v. Paden, 158 A.D.2d 554, 555, 551 N.Y.S.2d 325).   The defendant's arrest was the result of information provided by a confidential informant and the hearing court properly assessed the informant's reliability in camera, sufficiently following the procedural safeguards set forth in People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 (see People v. Rodriguez, 295 A.D.2d 456, 743 N.Y.S.2d 307).   The defendant's contention that the confidential informant's identity should have been disclosed at the suppression hearing is not preserved for appellate review (see People v. Rushie, 162 A.D.2d 733, 734, 557 N.Y.S.2d 131) and, in any event, is without merit under the circumstances of this case (see People v. Darden, 34 N.Y.2d 177, 182, 356 N.Y.S.2d 582, 313 N.E.2d 49;  People v. Goggins, 34 N.Y.2d 163, 168, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. denied 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286;  People v. Carpenito, 171 A.D.2d 45, 48-49, 574 N.Y.S.2d 218, affd. 80 N.Y.2d 65, 587 N.Y.S.2d 264, 599 N.E.2d 668).

 The trial court providently exercised its discretion in denying, without a hearing, the defendant's application to permit testimony of an expert in the field of cross-racial identification.   New York courts evaluate the admissibility of novel evidence under the Frye test (see Frye v. United States, 293 F. 1013;  People v. Wernick, 89 N.Y.2d 111, 651 N.Y.S.2d 392, 674 N.E.2d 322;  Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114), pursuant to which the testimony must be based on principles that are generally accepted in the relevant scientific community (see People v. LeGrand, 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374;  People v. Wernick, 89 N.Y.2d at 111, 651 N.Y.S.2d 392, 674 N.E.2d 322;  People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451).   Here, the testimony proffered by the defendant did not include any basis upon which this standard could be satisfied at a hearing (People v. Young, 7 N.Y.3d 40, 45, 817 N.Y.S.2d 576, 850 N.E.2d 623;  People v. Austin, 46 A.D.3d 195, 845 N.Y.S.2d 315).

 The trial court's minimal questioning of the defendant was solely for the purpose of clarifying issues and proof, and ensuring the orderly and expeditious progress of the trial (see People v. Yut Wai Tom, 53 N.Y.2d 44, 439 N.Y.S.2d 896, 422 N.E.2d 556;  People v. Todd, 306 A.D.2d 504, 505, 761 N.Y.S.2d 312;  People v. Fauntleroy, 258 A.D.2d 664, 665, 683 N.Y.S.2d 916).   Furthermore, any potential prejudice to the defendant was minimized by the trial court's instructions to the jury (see People v. Bembury, 14 A.D.3d 575, 787 N.Y.S.2d 661).

 Although it would have been error for the trial court to have permitted the prosecutor to elicit hearsay testimony from a witness that other nontestifying witnesses identified the defendant as a participant in the crime (see People v. Johnson, 7 A.D.3d 732, 733, 777 N.Y.S.2d 190;  People v. Jones, 305 A.D.2d 698, 699, 760 N.Y.S.2d 227;  People v. Williams, 198 A.D.2d 249, 603 N.Y.S.2d 518), no such testimony was elicited here (see People v. Barboza, 24 A.D.3d 460, 461, 805 N.Y.S.2d 657;  People v. Nicholas, 1 A.D.3d 614, 767 N.Y.S.2d 663;  People v. Thomas, 197 A.D.2d 649, 650, 602 N.Y.S.2d 686).

 The defendant's contention that he was deprived of a fair trial because of certain remarks made by the prosecutor during summation is unpreserved for appellate review, as defense counsel did not object to some of the challenged remarks, made general one-word objections to others, and did not move for a mistrial or request curative instructions when the objections were sustained (see People v. Gillespie, 36 A.D.3d 626, 627, 831 N.Y.S.2d 83;  People v. Eugene, 27 A.D.3d 480, 481, 812 N.Y.S.2d 578).   In any event, the challenged remarks were either fair comment on the evidence, permissive rhetorical comment, or responsive to the defense counsel's summation (see People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614;  People v. Filipe, 7 A.D.3d 539, 540, 776 N.Y.S.2d 94).

The defendant was not denied his right to effective assistance of counsel (see People v. Green, 41 A.D.3d 862, 863, 841 N.Y.S.2d 313, lv. denied 9 N.Y.3d 961, 848 N.Y.S.2d 30, 878 N.E.2d 614;  People v. Bethea, 34 A.D.3d 489, 824 N.Y.S.2d 128).