People v. Banks

• Decision Date: 22 June 2010
• Citation: 905 N.Y.S.2d 627,74 A.D.3d 1214
• Parties: The PEOPLE, etc., respondent, v. Andre BANKS, appellant.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 627

74 A.D.3d 1214

The PEOPLE, etc., respondent,

v.Andre BANKS, appellant.

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

June 22, 2010.

Richard L. Herzfeld, New York, N.Y., for appellant, and appellant pro se.

Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered October 9, 2007, convicting him of murder in the first degree, attempted murder in the first degree (three counts), assault in the first degree (two counts), robbery in the first degree, and reckless endangerment in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The County Court providently exercised its discretion in precluding, after a Frye hearing ( see Frye v. United States, 293 F. 1013), expert testimony on the effects of stress and cross-race bias on eyewitness identification. The defendant failed to meet his burden of establishing that the proposed testimony was based on principles that are generally accepted in the scientific community ( see People v. LeGrand, 8 N.Y.3d 449, 452, 835 N.Y.S.2d 523, 867 N.E.2d 374).

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review, as the defendant either failed to object to the comments or made only general objections, and did not request further curative instructions or move for a mistrial ( see CPL 470.05[2]; People v. Mitchell, 68 A.D.3d 784, 785, 890 N.Y.S.2d 585). In any event, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to defense counsel's summation ( see People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Montgomery, 160 A.D.2d 657, 559 N.Y.S.2d 630).

The County Court also providently exercised its discretion in declining to impose any sanction against the People for the loss of alleged 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). The defendant failed to articulate a factual basis for the assertion that the alleged Rosario material existed ( see People v. Young, 61 A.D.3d 786, 877 N.Y.S.2d 179;People v. Brown, 286 A.D.2d 340, 341, 728 N.Y.S.2d 685; People v. Rodriguez, 270 A.D.2d 505, 705 N.Y.S.2d 387).

Contrary to the defendant's contention, it was not improper for the prosecutor to elicit testimony on redirect examination that the witness had previously identified the defendant from a photographic array. Such testimony is appropriate when, as here, the defendant opens the door to this type of inquiry during cross-examination of the witness ( see People v. Hamilton, 33 A.D.3d 937, 938, 826 N.Y.S.2d 294; People v. Jackson, 240 A.D.2d 680, 659 N.Y.S.2d 479; People v. Marrero, 117 A.D.2d 626, 498 N.Y.S.2d 78).

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454...