PEOPLE v. CARTER (2007)

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered August 17, 2006, convicting him of robbery in the first degree (two counts), robbery in the third degree, grand larceny in the fourth degree, and petit larceny (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant's contentions that the search warrants were not supported by probable cause are unpreserved for appellate review (see CPL 470.05 [2];  People v. Martin, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363) and, in any event, are without merit (see People v. Nunziata, 10 A.D.3d 695, 782 N.Y.S.2d 97).

 The specific bases for the defendant's contentions on appeal that the photographic arrays were unduly suggestive were not raised below, and are therefore unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Dominguez, 257 A.D.2d 511, 512, 685 N.Y.S.2d 14).   In any event, the photographic arrays were not unduly suggestive where, as here, the “defendant's appearance and pose did not differ greatly from those of the men in the other photographs” (People v. Wright, 297 A.D.2d 391, 746 N.Y.S.2d 611;  see People v. Avent, 29 A.D.3d 601, 813 N.Y.S.2d 786).

 There is no merit to the defendant's contentions that certain statements introduced into evidence differed somewhat from those set forth in the notices pursuant to CPL 710.30.   Although the statements identified in the notices differed somewhat from the statements provided by the police witnesses at trial, the defendant was not deprived of a fair trial because the CPL 710.30 notices adequately informed the defendant of the “sum and substance” of the statements admitted at trial (see People v. Coleman, 256 A.D.2d 473, 474, 682 N.Y.S.2d 402;  People v. Linderberry, 222 A.D.2d 731, 732, 634 N.Y.S.2d 571).

 The defendant's claim that his alleged exclusion from three sidebar bench conferences resulted in a violation of his fundamental right to be present at all material stages of trial is meritless “where, as here, the record is simply insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial” (People v. Velasquez, 1 N.Y.3d 44, 49, 769 N.Y.S.2d 156, 801 N.E.2d 376;  see People v. Fabricio, 307 A.D.2d 882, 883, 763 N.Y.S.2d 619).

 The defendant's contention that the court erred in failing to provide an expanded identification charge is “unpreserved for appellate review as the defense counsel waived any objection by acquiescing to the charge as given” (People v. James, 35 A.D.3d 762, 825 N.Y.S.2d 776;  see CPL 470.05 [2];  People v. Glover, 191 A.D.2d 582, 583, 595 N.Y.S.2d 215). In any event, the jury charge as to identification was adequate (see People v. Knight, 87 N.Y.2d 873, 874-875, 638 N.Y.S.2d 938, 662 N.E.2d 256).

 The defendant's contention that the prosecution failed to adduce legally sufficient evidence of his identity as the perpetrator of the crimes is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d at 20, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the identification evidence was legally sufficient.   Any discrepancies in witnesses' prior statements to the police and their trial testimony were not of such magnitude as to render their testimony incredible or unreliable as a matter of law (see People v. Almonte, 23 A.D.3d 392, 393, 806 N.Y.S.2d 95).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The trial court's response to the jury's request, inter alia, to view videotape footage did not violate CPL 310.30.   The court did not deprive defense counsel of the opportunity to be heard before responding to the jury's request (see People v. O'Rama, 78 N.Y.2d 270, 276, 574 N.Y.S.2d 159, 579 N.E.2d 189), and its subsequent interaction with the jury “conveyed no information pertaining to the law or facts of the case, and did not limit or channel the jury's question, explicitly leaving open the possibility that the jury wanted ‘something else’ ” (People v. Lykes, 81 N.Y.2d 767, 770, 593 N.Y.S.2d 779, 609 N.E.2d 132).

 We find no merit to the defendant's claim that he was deprived of the effective assistance of trial counsel.   The defendant was provided with meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and to the extent that the defendant bases his ineffective assistance claim on the failure of the defense counsel to make certain applications, “[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).

The defendant's remaining contentions are without merit.