PEOPLE v. TROWELL (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered November 17, 2016, convicting him of grand larceny in the fourth degree (two counts) and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of grand larceny in the fourth degree (two counts) and petit larceny arising out of the theft of the complainant's wallet from her workplace at a salon in Queens.  At trial, the People introduced into evidence surveillance video footage and still images made from that footage allegedly depicting the defendant during the incident.

The Supreme Court did not improvidently exercise its discretion in admitting the surveillance video footage and the still images, as the People presented sufficient evidence that the video footage accurately represented the events depicted (see People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665;  People v. Wells, 161 A.D.3d 1200, 77 N.Y.S.3d 668;  People v. Smith, 159 A.D.3d 597, 598, 73 N.Y.S.3d 543).

The Supreme Court did not improvidently exercise its discretion in permitting a police detective to testify that, in his opinion, the defendant was the individual depicted in the surveillance video.  The People presented evidence that the detective was familiar with the defendant based on numerous prior interactions with him over several years, and that the defendant's appearance had changed between the time of the video and the time of the trial.  In light of such evidence, there was “some basis” for concluding that the detective was more likely than the jurors to correctly determine whether the defendant was the individual depicted in the video (People v. Russell, 165 A.D.2d 327, 333, 567 N.Y.S.2d 548, affd 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922;  see People v. Jones, 161 A.D.3d 1103, 77 N.Y.S.3d 698;  People v. Franzese, 154 A.D.3d 706, 707, 61 N.Y.S.3d 661;  People v. Daniels, 140 A.D.3d 1083, 1084, 34 N.Y.S.3d 161;  People v. Sanchez, 95 A.D.3d 241, 249–250, 941 N.Y.S.2d 599, affd 21 N.Y.3d 216, 969 N.Y.S.2d 840, 991 N.E.2d 698).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel because his trial counsel failed to request a missing witness charge with respect to another employee of the salon who did not testify at trial.  Inasmuch as there was no indication that the uncalled witness was within the People's control, the request would have had little chance of success (see People v. Miles, 161 A.D.2d 805, 556 N.Y.S.2d 373;  People v. Pierre, 149 A.D.2d 740, 540 N.Y.S.2d 524;  cf.  People v. Savinon, 100 N.Y.2d 192, 201, 761 N.Y.S.2d 144, 791 N.E.2d 401;  People v. Davydov, 144 A.D.3d 1170, 1173, 43 N.Y.S.3d 74).  As such, the failure to request the charge did not deprive the defendant of the effective assistance of counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Cowell, 149 A.D.3d 866, 867, 51 N.Y.S.3d 193;  People v. Salton, 74 A.D.3d 997, 998, 905 N.Y.S.2d 199).

The defendant's contention that certain remarks made by the prosecutor in his opening statement and summation deprived him of a fair trial is unpreserved for appellate review, since the defendant either did not object to the remarks, made only a general objection, or failed to request further curative relief when his objections were sustained (see CPL 470.05[2];  People v. Barrett, 159 A.D.3d 1018, 1018–1019, 70 N.Y.S.3d 397;  People v. Beer, 146 A.D.3d 895, 897, 47 N.Y.S.3d 38;  People v. Guzman, 138 A.D.3d 1140, 31 N.Y.S.3d 146).  In any event, the contention is without merit, as the remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to the defense summation, or do not otherwise require reversal (see People v. Kaval, 154 A.D.3d 875, 876, 63 N.Y.S.3d 411;  People v. Carter, 152 A.D.3d 786, 56 N.Y.S.3d 471;  People v. Rudenko, 151 A.D.3d 1084, 1085, 54 N.Y.S.3d 597).

DILLON, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.