People v. Davis

• Decision Date: 03 May 2002
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ANTWAN DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

294 A.D.2d 936

742 N.Y.S.2d 758

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.ANTWAN DAVIS, Appellant.

Decided May 3, 2002.

Present — Pine, J.P., Hayes, Wisner, Scudder and Kehoe, JJ.

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 fiancé (see People v Shields, 155 AD2d 978, lv denied 75 NY2d 818; see generally Matter of Abe A., 56 NY2d 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 fiancé 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 AD2d 951, 951, lv denied 79 NY2d 948; see generally People v Chipp, 75 NY2d 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 NY2d 738, 741). Defendant failed to object to the testimony of the victim's fiancé 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 AD2d 1072; see also People v West, 56 NY2d 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 process protections." We disagree. "`It is a defendant's burden to demonstrate * * * the existence of defects impairing the integrity of the Grand Jury proceeding and giving rise to a possibility of prejudice,' and defendant failed to meet that burden" (People v Wood, 291 AD2d 824, 824, quoting People v Santmyer, 255 AD2d 871,...