The People, etc., respondent, v. David Clanton, appellant. (2010)

Submitted-December 15, 2009

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered March 12, 2007, convicting him of burglary in the first degree (two counts), robbery in the first degree (four counts), criminal possession of a weapon in the second degree, and criminal possession of stolen property in the fifth 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 physical evidence.

ORDERED that the judgment is affirmed.

The prosecutor improperly elicited testimony from the arresting officers which bolstered the complainants' testimony by providing official confirmation of their identifications of the defendant (see People v. Trowbridge, 305 N.Y. 471;  People v. German, 45 AD3d 861, 862;  People v. Ambrose, 147 A.D.2d 577).   However, the admission of the bolstering testimony was harmless because the evidence of the defendant's guilt, without reference to the error, was overwhelming and there was no significant probability that, but for the error, the jury would have acquitted the defendant (see People v. Johnson, 57 N.Y.2d 969, 970;  People v. Crimmins, 36 N.Y.2d 230, 241-242;  People v. Garrett, 62 AD3d 899, 900;  People v. Capehart, 60 AD3d 689;  People v. German, 45 AD3d 861, 862).

The defendant's contention that the Supreme Court should have re-opened the suppression hearing based on certain trial testimony is unpreserved for appellate review because he did not seek this relief (see People v. Hossain, 298 A.D.2d 599).   Furthermore, having failed to move to re-open the hearing, the defendant may not rely upon trial testimony to challenge the suppression ruling (see People v. Nunez, 55 AD3d 756;  People v. Crosby, 33 AD3d 719, 720;  People v. Gold, 249 A.D.2d 414, 415).

The prosecutor's summation remarks regarding the statement made by the defendant after the police removed a gun from his pocket, and the defendant's unexplained possession of the complainants' property, constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109;  People v. O'Diah, AD3d, 2009 Slip Op 09050 [2d Dept 2009];  People v. Scrimo, 67 AD3d 825).   The defendant's claim that certain additional summation comments were improper is unpreserved for appellate review (see CPL 470.05[2];  People v. Garcia, 66 AD3d 699).   In any event, all but one of the remarks now claimed to have been improper were fair comment on the evidence or responsive to the defense summation (see People v. Galloway, 54 N.Y.2d 396, 399;  People v. Ashwal, 39 N.Y.2d at 109;  People v. O'Diah, AD3d, 2009 Slip Op 09050 [2d Dept 2009];  People v. Garcia, 66 AD3d 699;  People v. Smalls, 65 AD3d 708) and the remaining challenged remark constituted harmless error (see People v. Crimmins, 36 N.Y.2d at 241-242;  People v. Scrimo, 67 AD3d 825;  People v. Clarke, 65 AD3d 1055).

The defendant's remaining contentions are without merit.

FISHER, J.P., MILLER, ENG and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court