People v. Birot

• Decision Date: 17 October 2012
• Citation: 99 A.D.3d 933,952 N.Y.S.2d 293,2012 N.Y. Slip Op. 06970
• Parties: The PEOPLE, etc., respondent, v. Matthew BIROT, appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 933
952 N.Y.S.2d 293
2012 N.Y. Slip Op. 06970

The PEOPLE, etc., respondent,
v.
Matthew BIROT, appellant.

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

Oct. 17, 2012.

[952 N.Y.S.2d 294]

Audrey A. Thomas, Rosedale, N.Y. (Omar S. Long and Sean–Patrick A. Coy on the brief), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Bruce Alderman of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

[99 A.D.3d 933]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered December 1, 2009, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence. The People established in the first instance that the photographic identification procedure and lineup were not improper, and the defendant failed to establish that the procedures were unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;People v. Seymour, 77 A.D.3d 976, 978, 910 N.Y.S.2d 487).

The Supreme Court properly denied the defendant's CPL 330.30 motion. The defendant failed to establish that the People violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. To the extent that the defendant's factual assertions concerning the undisclosed material were based on matter outside the trial record, the Supreme Court properly declined to consider them ( seeCPL 330.30[1]; People v. Wolf, 98 N.Y.2d 105, 119, 745 N.Y.S.2d 766, 772 N.E.2d 1124;People v. Thomas, 71 A.D.3d 1061, 1062, 897 N.Y.S.2d 244;People v. Ai Jiang, 62 A.D.3d 515, 880 N.Y.S.2d 12).

The defendant's contention that the prosecutor improperly vouched for the credibility of an eyewitness during summation is without merit. The challenged remarks were responsive to defense counsel's summation ( see People v. McCoy, 89 A.D.3d 1110, 1110, 933 N.Y.S.2d 583;People v. Carey, 67 A.D.3d 925, 925, 888 N.Y.S.2d 615). The defendant's contentions that he was deprived of a fair trial by certain other remarks made by the prosecutor during summation are unpreserved for appellate review ( seeCPL 470.05 [2];

[952 N.Y.S.2d 295]

People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89). In any event, the challenged remarks were either fair comment on the evidence...