PEOPLE v. HALL (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court erred in denying an independent source hearing as to the shooting victim, who viewed a surveillance video depicting the defendant and other individuals taken shortly before the shooting, is without merit.  There was nothing inherently suggestive in showing the victim the surveillance video depicting the defendant and other individuals, as the defendant was not singled out, portrayed unfavorably, or in any other manner prejudiced by police conduct or comment, or by the setting in which the defendant was taped (see People v. Edmonson, 75 N.Y.2d 672, 674, 555 N.Y.S.2d 666, 554 N.E.2d 1254;  People v. Perri, 162 A.D.3d 1487, 77 N.Y.S.3d 815;  People v. Davis, 115 A.D.3d 1167, 982 N.Y.S.2d 230).  Moreover, the victim's viewing of the video was not an identification procedure within the meaning of CPL 710.30 (see People v. Gee, 99 N.Y.2d 158, 162, 753 N.Y.S.2d 19, 782 N.E.2d 1155).

The defendant's contention that the testimony of four police officers as to the description they received of the shooter constituted improper bolstering is unpreserved for appellate review, as he did not raise this argument before the Supreme Court (see People v. Nanton, 18 A.D.3d 671, 795 N.Y.S.2d 648;  People v. Victor, 271 A.D.2d 556, 705 N.Y.S.2d 659).  Furthermore, the defendant's contention was waived when defense counsel elicited similar testimony on cross-examination (see People v. Romero, 143 A.D.3d 1003, 39 N.Y.S.3d 507;  People v. Bryan, 50 A.D.3d 1049, 856 N.Y.S.2d 227).

In any event, the police testimony did not constitute improper bolstering.  The descriptions of the shooter were admissible, as they were offered not for the truth of the descriptions, but were probative of the witnesses' ability to observe and remember the perpetrator, and thus were relevant to the accuracy of the identifications they made (see People v. Huertas, 75 N.Y.2d 487, 492, 554 N.Y.S.2d 444, 553 N.E.2d 992).  The brief recitation by the officers of the descriptions of the shooter given by the witnesses in the immediate aftermath of the shooting was not likely to give the jury the false impression that there was “an impressive amount of testimony” corroborating the witnesses' accounts (People v. Smith, 22 N.Y.3d 462, 467, 982 N.Y.S.2d 809, 5 N.E.3d 972).

The defendant's contention that he was deprived of a fair trial by certain comments made by the prosecutor during her summation is without merit (see People v. Hugginis, 163 A.D.3d 719, 76 N.Y.S.3d 615).

The defendant was not deprived of the effective assistance of counsel.  The evidence, the law, and the circumstances of this particular case, viewed in totality and as of the time of the representation, show that counsel provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

In view of the serious nature of the offense and the defendant's criminal history, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

CHAMBERS, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.