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

The PEOPLE, etc., respondent, v. Gilbert HINES, appellant.

Decided: May 31, 2005

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, and ROBERT A. LIFSON, JJ. Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Donna Aldea, and Maria Rodi of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered October 22, 2003, convicting him of robbery in the first degree (two counts), criminal possession of stolen property in the fourth 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 (Demakos, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 In reviewing suppression issues on appeal, great weight must be accorded to the determination of the hearing court, with its particular advantages of having seen and heard the witnesses (see People v. Morrison, 258 A.D.2d 599, 685 N.Y.S.2d 744).   Its determination should not be disturbed unless it is clearly unsupported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

 After an investigation in which a complainant identified the defendant's brother Tyrone from a photograph array as the perpetrator, a detective brought Tyrone to the precinct for questioning.   However, the detective noticed that Tyrone walked with a limp and his arm was in a cast.   Further, Tyrone informed the detective that the defendant had the vehicle used in the robbery during the relevant time.   When the defendant subsequently arrived at the precinct, the detective observed that the defendant also matched the description of the perpetrator given by the complainant and looked strikingly similar to his brother but, unlike his brother, had no physical impairments.

Based on the totality of the circumstances of this case, we find that the detective had a reasonable basis to believe that it was more probable than not that the defendant was the perpetrator of the crime (see People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028;  People v. Carrasquillo, 54 N.Y.2d 248, 252, 445 N.Y.S.2d 97, 429 N.E.2d 775;  People v. Javier, 175 A.D.2d 182, 572 N.Y.S.2d 69;  see also People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).   The subsequent search of the defendant's person, revealing proceeds from the instant robbery, as well as an earlier robbery, was therefore constitutional.   Because its determination is supported by the record, we find no basis to disturb the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress physical evidence (see People v. Morrison, supra;  People v. Prochilo, supra ).

 Further, the defendant failed to object to the prosecutor's comments during summation, and therefore his argument directed thereto is unpreserved for appellate review (see People v. Nuccie, 57 N.Y.2d 818, 819, 455 N.Y.S.2d 593, 441 N.E.2d 1111;  People v. Lopez, 118 A.D.2d 873, 875, 500 N.Y.S.2d 359).   In any event, his contention is without merit, as the prosecutor's challenged remarks were either responsive to the defendant's summation or constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Miller, 183 A.D.2d 790, 583 N.Y.S.2d 517).

The defendant's contention that he was deprived the effective assistance of counsel is without merit (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

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