People v. Perdomo

Feb 20, 2001
Versions:280 A.D.2d 617
720 N.Y.S.2d 205
2001 N.Y. App. Div. LEXIS 1641

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered January 15, 1999, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was prejudiced by the prosecution’s delay in producing Rosario material (see, People v Rosario, 9 NY2d 286, cert denied 368 US 866) is unpreserved for appellate review, as he failed to move for a mistrial or to request any other sanction on this ground (see, People v Graves, 85 NY2d 1024, 1027; People v Rogelio, 79 NY2d 843, 844). In any event, the defendant failed to demonstrate that he was substantially prejudiced by the delay (see, People v Martinez, 71 NY2d 937; People v Ranghelle, 69 NY2d 56). The material *618was produced before the defendant’s counsel cross-examined the prosecution’s first witness, and his counsel was granted a recess to review it (see, People v Bostic, 258 AD2d 467, 468; People v Mann, 216 AD2d 796, 801).

In general, a witness may not testify concerning a previous identification of a defendant from photographs (see, People v Cioffi, 1 NY2d 70, 73; People v Green, 143 AD2d 768, 770; People v Grate, 122 AD2d 853, 854). However, such testimony is permitted when the defendant opens the door to this line of inquiry (see, People v Bolden, 58 NY2d 741; People v Grate, supra). The defendant’s counsel asked the complainant if she was shown a single photograph of the defendant just before she viewed the lineup, thereby permitting the prosecutor to demonstrate the fairness of the identification procedure (see, People v Almonte, 135 AD2d 824; People v Grate, supra). Contrary to the defendant’s contention, the subsequent testimony of a detective was not improper bolstering, as he did not confirm the complainant’s identification of the defendant (see, People v Middleton, 128 AD2d 554; People v Lopez, 123 AD2d 360; cf., People v Grate, supra).

The defendant’s remaining contention is without merit. Ritter, J. P., Krausman, McGinity and Smith, JJ., concur.