People v. Wongshing

• Decision Date: 18 December 1997
• Citation: People v. Wongshing, 666 N.Y.S.2d 166, 245 A.D.2d 186 (N.Y. App. Div. 1997)
• Parties: , 1997 N.Y. Slip Op. 10,963 The PEOPLE of the State of New York, Respondent, v. Wilton WONGSHING, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 166

666 N.Y.S.2d 166

245 A.D.2d 186, 1997 N.Y. Slip Op. 10,963

The PEOPLE of the State of New York, Respondent, v. Wilton WONGSHING, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 18, 1997.

Korey E. Kerscher, for People.

Georgia J. Hinde, for Wilton Wongshing.

Before SULLIVAN, J.P., and ROSENBERGER, NARDELLI, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Jay Gold, J.), rendered May 31, 1995, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, unanimously affirmed.

The court properly exercised its discretion in curtailing defense counsel's questioning of prospective jurors concerning their ability to fairly evaluate a defendant's decision not to testify since counsel's questioning was repetitious, concerned the jurors' knowledge of the law and since the court provided detailed instructions as to the applicable principles and then obtained assurances that the jurors would follow the law as it was charged (see, People v. Boulware, 29 N.Y.2d 135, 324 N.Y.S.2d 30, 272 N.E.2d 538, cert. denied 405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463; compare, People v. Porter, 226 A.D.2d 275, 641 N.Y.S.2d 283).

Defendant's motion to suppress identification testimony was properly denied. Since defendant did not seek to reopen the Wade hearing based on evidence elicited at trial, we may not consider such evidence in reviewing the propriety of the suppression determination (People v. Nieves, 205 A.D.2d 173, 184, 617 N.Y.S.2d 751, aff'd 88 N.Y.2d 618, 648 N.Y.S.2d 863, 671 N.E.2d 1260). In any event, there is nothing to indicate that either the array or lineup were arranged in a way that singled out defendant or that the complainant was somehow prompted by the police to select him (see, People v. Santiago, 221 A.D.2d 249, 634 N.Y.S.2d 5, lv. denied 87 N.Y.2d 925, 641 N.Y.S.2d 607, 664 N.E.2d 518). The court properly exercised its discretion by refusing defendant's request to present a voice exemplar to disprove the identifications made of him since the victim's identification was based on factors other than defendant's alleged Caribbean accent and thus, any probative value of the proposed exemplar was outweighed by its potential to mislead the jury or to unfairly prejudice the prosecution (see, People v. Scarola, 71 N.Y.2d 769, 530 N.Y.S.2d 83, 525 N.E.2d 728).

The court...