People v. Holmes

• Decision Date: 26 December 2018
• Docket Number: 2016–00571,Ind. No. 8968/13
• Parties: The PEOPLE, etc., Respondent, v. Tremaine HOLMES, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1039
89 N.Y.S.3d 674

The PEOPLE, etc., Respondent,
v.
Tremaine HOLMES, Appellant.

2016–00571
Ind. No. 8968/13

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

Argued—September 18, 2018
December 26, 2018

Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Kristen A. Carroll of counsel), for respondent.

SHERI S. ROMAN, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of a fair trial by remarks made by the prosecutor during summation is without merit. The challenged remarks either were fair comment on the evidence

89 N.Y.S.3d 676

(see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), were a fair response to defense counsel's summation (see People v. Marcus, 112 A.D.3d 652, 653, 975 N.Y.S.2d 771 ; People v. Rogers, 106 A.D.3d 1029, 1030, 965 N.Y.S.2d 361 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ; People v. Cox, 161 A.D.2d 724, 725, 555 N.Y.S.2d 862 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury (see People v. Elder, 152 A.D.3d 787, 789, 59 N.Y.S.3d 134 ; People v. Bunting, 146 A.D.3d 794, 795, 43 N.Y.S.3d 910 ; People v. Hamilton, 135 A.D.3d 958, 22 N.Y.S.3d 904 ).

The defendant's claim that he was deprived of a fair trial by the Supreme Court's failure to give the jury an expanded identification charge is unpreserved for appellate review, as defense counsel merely requested the "generic" identification charge (see People v. Campbell, 142 A.D.3d 623, 624, 36 N.Y.S.3d 503 ; People v. Perez, 77 N.Y.2d 928, 569 N.Y.S.2d 600, 572 N.E.2d 41 ). In any event, the contention is without merit. The court's charge constituted a correct statement of the law which sufficiently apprised the jury that the reasonable doubt standard applied to identification (see People v. Knight, 87 N.Y.2d 873, 638 N.Y.S.2d 938, 662 N.E.2d 256 ; People v. Perez, 77 N.Y.2d 928, 569 N.Y.S.2d 600, 572 N.E.2d 41 ; People v. Newton, 46 N.Y.2d 877, 414 N.Y.S.2d 680, 387 N.E.2d 612 ; People v. Campbell, 142 A.D.3d at 624, 36 N.Y.S.3d 503 ). "Moreover, when evaluated against the background of all the evidence presented, the failure to expand the charge on identification did not deprive the defendant of a fair trial" ( People v. Campbell, 142 A.D.3d at 624, 36 N.Y.S.3d 503 ; see People v. Knight, 87 N.Y.2d at 875, 638 N.Y.S.2d 938, 662 N.E.2d 256 ; People v. Crimmins, 36 N.Y.2d 230, 238, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

The defendant next contends that testimony elicited from a police detective that the defendant was arrested "[a]fter the lineup was conducted" constituted impermissible bolstering. This contention is not preserved for appellate review, as defense counsel did not object to the admission of the challenged testimony (see CPL 470.05[2] ; People v. Locenitt, 157 A.D.3d 905, 907, 66 N.Y.S.3d 908 ; People v. Bonilla, 151 A.D.3d 735, 736, 58 N.Y.S.3d 48 ; People v. Jones, 131 A.D.3d 1179, 1180, 16 N.Y.S.3d 328 ; People v. Speaks, 124 A.D.3d 689, 691, 1 N.Y.S.3d 257 ). However, contrary to the People's assertion, the claim was not waived by defense counsel's elicitation on cross-examination of similar testimony, because defense counsel was not the first to elicit the challenged testimony and did not base any of his summation comments on the detective's testimony regarding the lineup (cf. People v. Bonilla, 151 A.D.3d at 736, 58 N.Y.S.3d 48 ; People v. Bryan, 50 A.D.3d 1049, 1050–1051, 856 N.Y.S.2d 227 ). Under the circumstances, we reach this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Lee, 22 A.D.3d 602, 602–603, 801 N.Y.S.2d 753 ).

We conclude that the detective's testimony that the defendant was arrested "[a]fter the lineup was conducted" could have led the jury to believe that the police were induced to take action as a result of the lineup identification, and therefore constituted improper implicit bolstering of the witness's identification testimony (see People v. Holt, 67 N.Y.2d 819, 821, 501 N.Y.S.2d 641, 492 N.E.2d 769 ; ...