People v. Davis
| Decision Date | 03 May 2002 |
| Docket Number | 4,01-01152 |
| Parties | PEOPLE OF THE STATE OF NEW YORK,, v ANTWAN DAVIS,KA 01-01152 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT Decided on |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of Supreme Court, Onondaga County (Brunetti, J.), entered April 27, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [3]) and other crimes. Contrary to defendant's contention, Supreme Court properly ordered defendant to participate in the lineup in which he was identified by the victim's fiance (see People v Shields, 155 A.D.2d 978, lv denied 75 N.Y.2d 818; see generally Matter of Abe A., 56 N.Y.2d 288, 290-291). Although the fill-ins who participated in the lineup were not the same as those who had been included in a previous photo array from which the victim's fiance had identified someone other than defendant, "the fill-ins used in the photo array[] and in the lineup procedure were sufficiently similar to defendant in appearance [and] there was no reasonable possibility that the attention of the [witness] would be drawn to him as the suspect chosen by the police" (People v Hall, 177 A.D.2d 951, 951, lv denied 79 N.Y.2d 948; see generally People v Chipp, 75 N.Y.2d 327, 335-336, cert denied 498 US 833). Indeed, the use of different fill-ins was particularly appropriate where, as here, there had been "significant changes in defendant's appearance between the time of the photograph and lineup" (People v Rodriguez, 64 N.Y.2d 738, 741). Defendant failed to object to the testimony of the victim's fiance with respect to the lineup on the ground that it constituted impermissible bolstering and thus has failed to preserve for our review his present contention that the court erred in admitting the testimony on that ground (see People v Grimes, 289 A.D.2d 1072; see also People v West, 56 N.Y.2d 662, 663). In any event, the People were properly allowed to present that testimony as "evidence in chief" (CPL 60.30).
Defendant further contends that the court erred in summarily denying his motion to "inspect the grand jury minutes to insure that the People adhered to procedural due...
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