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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Angela DAVIS, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GORSKI, MARTOCHE, PINE, AND LAWTON, JJ. Edward J. Nowak, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Michael J. Nolan of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting her upon a jury verdict of two counts of assault in the first degree (Penal Law § 120.10[1] ).   Although we agree with defendant that the People's mid-trial request to fingerprint defendant was untimely (see CPL 240.90[1] ), as was the People's request to present expert evidence to confirm her identity, we conclude that any error arising therefrom is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   We apply the harmless error analysis applicable to nonconstitutional error because fingerprint evidence is “non-testimonial evidence” (CPL 240.40[2][b][iii];  see United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149;  see also People v. Finkle, 192 A.D.2d 783, 788, 596 N.Y.S.2d 549, lv. denied 82 N.Y.2d 753, 603 N.Y.S.2d 995, 624 N.E.2d 181).   We further conclude that, even assuming, arguendo, that Supreme Court erred in denying the request of defendant for a brief adjournment to retain her own fingerprint expert and a response to the People's mid-trial request for discovery, that error is harmless as well.   We note that defendant's testimony eliminated any dispute regarding the issue of identification.   In any event, the evidence of defendant's guilt is overwhelming, and there is no significant probability that the failure to grant an adjournment contributed to defendant's conviction (see generally People v. Spina, 275 A.D.2d 902, 904, 713 N.Y.S.2d 394, lv. denied 95 N.Y.2d 969, 722 N.Y.S.2d 487, 745 N.E.2d 408;  Finkle, 192 A.D.2d at 788, 596 N.Y.S.2d 549).

 We further conclude that the court did not abuse its discretion in limiting the cross-examination of certain prosecution witnesses with respect to their testimony concerning the precise location of the altercation, i.e., whether it occurred on the stairs or at the bottom of the stairs, and whether an unsequestered witness discussed with another unsequestered witness her testimony regarding which theater door defendant used to leave the scene after the altercation (see generally People v. Brazeau, 304 A.D.2d 254, 256-257, 759 N.Y.S.2d 268, lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481).   The court's curtailment of the cross-examination at issue herein did not “ ‘keep[ ] from the jury relevant and important facts bearing on the trustworthiness of crucial testimony’ ” (People v. Smith, 12 A.D.3d 1106, 1106, 784 N.Y.S.2d 810, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143;  see also People v. Baker, 294 A.D.2d 888, 889, 742 N.Y.S.2d 749, lv. denied 98 N.Y.2d 708, 749 N.Y.S.2d 5, 778 N.E.2d 556).   In any event, we conclude that the alleged error is harmless beyond a reasonable doubt (see People v. Snell, 234 A.D.2d 986, 652 N.Y.S.2d 455, lv. denied 89 N.Y.2d 1015, 658 N.Y.S.2d 254, 680 N.E.2d 628;  see generally Crimmins, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The court also properly refused to permit questioning on the issue whether certain witnesses were able to identify anyone in a photo array inasmuch as there was no indication that those witnesses were unable to identify defendant at trial (see generally People v. Quevas, 81 N.Y.2d 41, 45-46, 595 N.Y.S.2d 721, 611 N.E.2d 760;  People v. Diggs, 5 A.D.3d 395, 396, 772 N.Y.S.2d 550, lv. denied 2 N.Y.3d 798, 781 N.Y.S.2d 297, 814 N.E.2d 469).   Defendant failed to preserve for our review her further contention that she was deprived of a fair trial by prosecutorial misconduct on summation (see People v. Rivera, 73 N.Y.2d 941, 540 N.Y.S.2d 233, 537 N.E.2d 618;  People v. Norman, 1 A.D.3d 884, 767 N.Y.S.2d 728, lv. denied 1 N.Y.3d 599, 776 N.Y.S.2d 231, 808 N.E.2d 367).   In any event, we conclude that the prosecutor's statement at issue was a fair response to defense counsel's summation (see People v. McCauley, 19 A.D.3d 1130, 1131, 796 N.Y.S.2d 488) and, in addition, was “fairly inferrable from the evidence” (People v. Ashwal, 39 N.Y.2d 105, 110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  see People v. Williams, 13 A.D.3d 1173, 1174, 787 N.Y.S.2d 770, lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982).

We agree with defendant, however, that the sentence is unduly harsh and severe.   Thus, as a matter of discretion in the interest of justice (see generally CPL 470.15[6][b] ), we modify the judgment by reducing the sentence imposed on each count of assault to a determinate term of incarceration of 10 years.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed on each count of assault in the first degree to a determinate term of incarceration of 10 years and as modified the judgment is affirmed.