People v. Quinones

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered May 10, 2000. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment rendered upon a jury verdict convicting him of murder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon in the second degree (§ 265.03), and two counts of criminal possession of a weapon in the third degree (§ 265.02 [1], [4]), arising from the shooting death of the victim in June 1997. Contrary to the contention of defendant, County Court was not required pursuant to People v Rodriguez (79 NY2d 445 [1992]) to permit him to call the witness who would identify him at trial during the Wade hearing. The purpose of a Rodriguez hearing is to establish that an identification is confirmatory when the court denies a request for a Wade hearing on that basis (see id. at 449-450). Where the court conducts a Wade hearing, there is no requirement that a Rodriguez hearing also be conducted (see People v Goico, 303 AD2d 1030 [2003], lv denied 100 NY2d 581 [2003]). Contrary to the further contention of defendant, the identification procedure was not unduly suggestive because of the differing skin tones of the subjects depicted in the photo array (see People v Pointer, 253 AD2d 500 [1998], lv denied 92 NY2d 1037 [1998]; People v Miller [Philip], 199 AD2d 422, 423 [1993], lv denied 83 NY2d 807 [1994]; see also People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). In any event, the subjects depicted in the photo array are sufficiently similar in appearance so that the viewer’s attention is not drawn to any one photograph in such as a way as to indicate that the police were urging a particular selection (see People v Walker, 2 AD3d 1358 [2003]; People v Martinez, 298 AD2d 897, 897-898 [2002], lv denied 98 NY2d 769 [2002], cert denied 538 US 963 [2003], reh denied 539 US 911 [2003]; see also Chipp, 75 NY2d at 336). Finally, to the extent that the prosecutor’s comments on summation were improper and that the harm resulting therefrom was not alleviated by the court’s curative remarks (see People v Madore, 289 AD2d 986 [2001], lv denied 97 NY2d 757 [2002]), they were not so egregious as to deprive defendant of a fair trial (see People v Jenkins, 302 AD2d 978, 979 [2003], lv denied 100 NY2d 562 [2003]; People v Cohen, 302 AD2d 904, 905 [2003]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Lawton, JJ.