PEOPLE v. PERDOMO

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

The PEOPLE, etc., Respondent, v. Juan PERDOMO, Appellant.

Decided: February 20, 2001

DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, NANCY E. SMITH, JJ. Roy P. Miller, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y. Brodt of counsel;  Michael D. Tarbutton on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered January 15, 1999, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that he was prejudiced by the prosecution's delay in producing Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) is unpreserved for appellate review, as he failed to move for a mistrial or to request any other sanction on this ground (see, People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220;  People v. Rogelio, 79 N.Y.2d 843, 844, 580 N.Y.S.2d 185, 588 N.E.2d 83).   In any event, the defendant failed to demonstrate that he was substantially prejudiced by the delay (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134;  People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011).   The material was produced before the defendant's counsel cross-examined the prosecution's first witness, and his counsel was granted a recess to review it (see, People v. Bostic, 258 A.D.2d 467, 468, 685 N.Y.S.2d 450;  People v. Mann, 216 A.D.2d 796, 801, 629 N.Y.S.2d 290).

 In general, a witness may not testify concerning a previous identification of a defendant from photographs (see, People v. Cioffi, 1 N.Y.2d 70, 73, 150 N.Y.S.2d 192, 133 N.E.2d 703;  People v. Green, 143 A.D.2d 768, 770, 533 N.Y.S.2d 474;  People v. Grate, 122 A.D.2d 853, 854, 505 N.Y.S.2d 720).   However, such testimony is permitted when the defendant opens the door to this line of inquiry (see, People v. Bolden, 58 N.Y.2d 741, 459 N.Y.S.2d 22, 445 N.E.2d 198;  People v. Grate, supra).   The defendant's counsel asked the complainant if she was shown a single photograph of the defendant just before she viewed the lineup, thereby permitting the prosecutor to demonstrate the fairness of the identification procedure (see, People v. Almonte, 135 A.D.2d 824, 522 N.Y.S.2d 928;  People v. Grate, supra).   Contrary to the defendant's contention, the subsequent testimony of a detective was not improper bolstering, as he did not confirm the complainant's identification of the defendant (see, People v. Middleton, 128 A.D.2d 554, 512 N.Y.S.2d 489;  People v. Lopez, 123 A.D.2d 360, 506 N.Y.S.2d 371;  cf., People v. Grate, supra).

The defendant's remaining contention is without merit.

RITTER, J.P., KRAUSMAN, McGINITY and SMITH, JJ., concur.

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