People v. Murry

Dec 22, 2005
Versions:24 A.D.3d 1319
805 N.Y.S.2d 911

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered August 20, 2003. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree and petit larceny.

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, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25 [2]) and petit larceny (§ 155.25). Contrary to defendant’s contentions, the verdict is not against the weight of the evidence and the conviction is supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We reject defendant’s further contention that the showup identification procedure was unduly suggestive. The record establishes that the showup was conducted in geographic and temporal proximity to the crimes (see People v Ortiz, 90 NY2d 533, 537 [1997]; see also People v Lapp, 258 AD2d 926, 927 [1999], lv denied 93 NY2d 1021 [1999]), and “prompt showup identifications by witnesses following a defendant’s arrest at or near the crime scene have been generally allowed and have never been categorically or presumptively condemned” (People v Duuvon, 77 NY2d 541, 544 [1991]).

Also contrary to the contention of defendant, he was not prejudiced by alleged prosecutorial misconduct during the prosecutor’s opening and closing statements (see generally People v Ashwal, 39 NY2d 105, 109-110 [1976]). In any event, we note that County Court issued prompt curative instructions and thus alleviated any possible prejudice to defendant (see People v Williams, 13 AD3d 1173 [2004], lv denied 4 NY3d 892; People v Scott, 163 AD2d 855 [1990], lv denied 76 NY2d 944 [1990]). Defendant failed to preserve for our review his further contention that the prosecutor’s opening statement was legally insufficient (see CPL 470.05 [2]) and, in any event, defendant’s contention is without merit (see People v Dennee, 291 AD2d 888 [2002], lv denied 98 NY2d 650 [2002]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Smith and Lawton, JJ.