SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

256 

KA 07-01852 

PRESENT: SMITH, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CORLAN PAGE, DEFENDANT-APPELLANT.

 

THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (Russell

P. Buscaglia, A.J.), rendered August 8, 2007. The judgment convicted

defendant, upon a jury verdict, of murder in the second degree (two

counts), attempted robbery in the first degree (two counts), burglary

in the first degree (two counts) and criminal possession of a weapon

in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of, inter alia, two counts of murder in the second degree

(Penal Law § 125.25 [1], [3]), defendant contends that Supreme Court

abused its discretion in precluding him from offering expert testimony

on the reliability of eyewitness identifications. We reject that

contention. “If . . . sufficient evidence corroborates an

eyewitness’s identification of the defendant, then . . . testimony

concerning eyewitness identifications is unnecessary” (People v

Santiago, 17 NY3d 661, 669; see People v LeGrand, 8 NY3d 449, 459). 

Here, expert testimony was not required because “there were two strong

eyewitness identifications, as well as many items of circumstantial

evidence that, when viewed as a whole, provided substantial

corroboration” (People v Munnerlyn, 92 AD3d 507, 507-508, lv denied 19

NY3d 965; see People v Fernandez, 78 AD3d 726, 726-727, lv denied 16

NY3d 830; People v Smith, 57 AD3d 356, 357, lv denied 12 NY3d 821).

Contrary to defendant’s contention, the court did not err in

imposing a sanction other than dismissal of the charges based on the

People’s loss of a basketball jersey that was found in the vicinity of

the crime scene and that matched the eyewitness descriptions of

clothing worn by the perpetrator. It is within the sound discretion

of the court to determine the appropriate sanction for the loss of

evidence (see People v Kelly, 62 NY2d 516, 521), and the court’s
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“overriding concern must be to eliminate any prejudice to the

defendant while protecting the interests of society” (id. at 520). 

“The loss or destruction of evidence prior to trial does not

necessarily require dismissal of the charge[s] and indeed dismissal is

considered a drastic remedy rarely invoked as an appropriate sanction

for the People’s failure to preserve evidence” (People v Haupt, 71

NY2d 929, 931). Here, defendant was able to mitigate any prejudice

caused by the loss of the basketball jersey by cross-examining a

police officer about the loss of the jersey and presenting evidence

that, prior to the loss of the jersey, the People collected a DNA

sample from it that did not match the DNA of defendant. In addition,

defense counsel referred to the loss of the jersey in his summation. 

Under these circumstances, and “[g]iven that the exculpatory value of

the missing evidence is completely speculative . . . , the court did

not abuse its discretion in imposing the lesser sanction” of a 

permissive adverse inference instruction (People v Pfahler, 179 AD2d

1062, 1063; see generally People v Feliciano, 301 AD2d 480, 481, lv

denied 100 NY2d 538; People v Hill, 266 AD2d 929, 929, lv denied 94

NY2d 903).

Defendant contends that the prosecutor’s peremptory challenges

with respect to two prospective jurors constitute Batson violations. 

We reject that contention. The People offered race-neutral reasons

for each peremptory challenge at issue, and the reasons were not

pretextual (see generally People v Smocum, 99 NY2d 418, 422; People v

Allen, 86 NY2d 101, 109-110). Specifically, the People explained that

they used one peremptory challenge with respect to an African-American

woman because her brother was a prison chaplain and she therefore was

likely to be sympathetic to defendant (see generally People v McCoy,

46 AD3d 1348, 1349, lv denied 10 NY3d 813). The People further

explained that they used a peremptory challenge with respect to

another African-American woman because, inter alia, she was blind in

one eye and partially deaf in one ear and those disabilities may have

affected her ability to see and hear the evidence at trial (see People

v Falkenstein, 288 AD2d 922, 922, lv denied 97 NY2d 704).

Although we agree with defendant that the prosecutor on summation

improperly suggested that defendant had the burden of proof, we

conclude that the prosecutor’s “improper comment[s were] not so

egregious that defendant was thereby deprived of a fair trial” (People

v Willson, 272 AD2d 959, 960, lv denied 95 NY2d 873). We note in

particular that the court sustained defendant’s objections to the

improper comments and instructed the jury to disregard them, and the

jury is presumed to have followed the court’s instructions (see

generally People v Wallace, 59 AD3d 1069, 1070, lv denied 12 NY3d

861). Moreover, “the court clearly and unequivocally instructed the

jury that the burden of proof on all issues remained with the

prosecution” (People v Pepe, 259 AD2d 949, 950, lv denied 93 NY2d

1024; see People v Matthews, 27 AD3d 1115, 1116). Defendant concedes

that his remaining contentions concerning prosecutorial misconduct

during summation are not preserved for our review (see CPL 470.05 [2];

People v Cox, 21 AD3d 1361, 1363-1364, lv denied 6 NY3d 753). In any

event, “ ‘[t]he [remaining] challenged remarks generally constituted
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fair comment on the evidence and [the] reasonable inferences to be

drawn therefrom, and . . . were responsive to defense arguments’ ”

(People v Taylor, 68 AD3d 1728, 1728, lv denied 14 NY3d 845).

Defendant contends that the court erred in allowing the People to

present evidence of a prior conviction by presenting testimony

concerning the existence of defendant’s fingerprints in the system. 

Defendant failed to preserve that contention for our review (see CPL

470.05 [2]; People v Crump, 77 AD3d 1335, 1336, lv denied 16 NY3d

857), and we conclude in any event that the People did not in fact

thereby present evidence of a prior conviction. “[T]he testimony of a

detective that the defendant’s fingerprints were already in the

system, which was not specifically identified as police-related, did

not compel the inference that the defendant had a past criminal

history” (People v Clemmons, 83 AD3d 859, 860, lv denied 19 NY3d 971;

see People v Henry, 71 AD3d 1159, 1160, lv denied 15 NY3d 774).

Defendant further contends that the court erred in refusing to

suppress identification testimony on the ground that the photo array

from which the identification was made was unduly suggestive. 

“Because the subjects depicted in the photo array [were] sufficiently

similar in appearance so that the viewer’s attention [was] not drawn

to any one photograph in such a way as to indicate that the police

were urging a particular selection, the photo array was not unduly

suggestive” (People v Gonzalez, 89 AD3d 1443, 1444, lv denied 19 NY3d

973, reconsideration denied 20 NY3d 932 [internal quotation marks

omitted]). We also reject defendant’s contention that the subsequent

lineup identification procedure was unduly suggestive (see generally

People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). 

Defendant failed to preserve for our review his contention that

the People committed a Rosario violation by failing to disclose a

photograph (see CPL 470.05 [2]), and that contention lacks merit in

any event. The photograph does not constitute Rosario material

because it is not “a statement made by a prosecution witness” (People

v Martinez, 298 AD2d 897, 898, lv denied 98 NY2d 769, cert denied 538

US 963, reh denied 539 US 911; see CPL 240.45 [1] [a]).

Finally, defendant contends that he was denied effective

assistance of counsel because defense counsel, inter alia, failed to

make objections during trial and thereby failed to preserve several

issues for appellate review. We reject that contention. As discussed

above, defendant’s unpreserved contentions are without merit, and “[a]

defendant is not denied effective assistance of trial counsel merely

because counsel does not make a motion or argument that has little or

no chance of success” (People v Stultz, 2 NY3d 277, 287, rearg denied

3 NY3d 702). With respect to the remaining alleged deficiencies on the

part of defense counsel, we conclude that, viewing the record as a

whole and as of the time of the representation, defendant received

effective assistance of counsel (see generally People v Baldi, 54 NY2d 
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137, 147). 

Entered: April 26, 2013 Frances E. Cafarell

Clerk of the Court