People v. James

• Decision Date: 13 April 2010
• Citation: 72 A.D.3d 844,898 N.Y.S.2d 635
• Parties: The PEOPLE, etc., respondent, v. Darryl JAMES, appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 635

72 A.D.3d 844

The PEOPLE, etc., respondent,

v.Darryl JAMES, appellant.

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

April 13, 2010.

Lynn W.L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Howard McCallum of counsel), for respondent.

MARK C. DILLON, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the Supreme Court, QueensCounty(Gavrin, J.), rendered August 14, 2007, convicting him of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, criminal trespass in the third degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

"At a suppression hearing, the prosecution has the initial burden of going forward with evidence to demonstrate the legality of the police conduct in the first instance" ( People v. Moses, 32 A.D.3d 866, 868, 823 N.Y.S.2d 409; see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709; People v. Thomas, 291 A.D.2d 462, 463, 738 N.Y.S.2d 357). Sincethe description of the defendant, though limited, was broadcast to police units near the scene, the stop by the backup police unit that occurred at approximately 4:00 A.M. at a distance of no more than four houses away from the crime scene and within two minutes of the call by the witness to the 911 operator was, under the totality of the circumstances, justified ( see People v. Hines, 46 A.D.3d 912, 848 N.Y.S.2d 349). The prosecution presented sufficient evidence to establish that the defendant was lawfully stopped and detained before being identified by the complainant ( see People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562). Accordingly, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony ( see People v. Bennett, 37 A.D.3d 483, 484, 829 N.Y.S.2d 206; People v. Gil, 21 A.D.3d 1120, 1121, 803 N.Y.S.2d 634; People v. Green, 10 A.D.3d 664, 781 N.Y.S.2d 700; People v. Holland, 4 A.D.3d 375, 376, 770 N.Y.S.2d 872).

A challenge to the prosecutor's comments in summation concerning the defendant's contention that he had found the money which the police discovered in his possession is unpreserved for appellate review, as the defendant failed to object to those remarks at the trial ( see People v. Boyce, 54 A.D.3d 1052, 866 N.Y.S.2d 203; People v. Philbert, 60 A.D.3d 698, 874 N.Y.S.2d 540; People v. Dashosh, 59 A.D.3d 731, 873 N.Y.S.2d 730). In any event, the prosecutor's remarks either were fair comment upon the evidence or constituted a fair response to arguments presented in the summation by defense counsel ( see People v. Ashwal, 39...