SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

294 

KA 11-01265 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

TIMOTHY L. KEELS, DEFENDANT-APPELLANT. 

 

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Joseph D. Valentino, J.), rendered May 10, 2011. The judgment

convicted defendant, upon a jury verdict, of robbery in the second

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of robbery in the second degree (Penal Law §

160.10 [3]). We reject defendant’s contention that his counsel was

ineffective in failing to move to reopen the Wade hearing because the

determination denying his motion to suppress identification testimony

was undermined by trial evidence. As an initial matter, we note that

a suppression determination must be based solely on the evidence

presented at the suppression hearing, and thus the court could not

reconsider its Wade determination based on trial testimony (see People

v Riley, 70 NY2d 523, 532; People v Evans, 291 AD2d 868, 869). In any

event, the record establishes that, at a reopened Wade hearing, the

People could have called the victim to testify that he had an

independent basis for his in-court identification of defendant (see

People v Elamin, 82 AD3d 1664, 1665, lv denied 17 NY3d 794; People v

Hill, 53 AD3d 1151, 1151-1152).

Defendant contends that the verdict is against the weight of the

evidence with respect to the use of force to steal the motor vehicle

(see Penal Law § 160.10 [3]). Viewing the evidence in light of the

elements of the crime as charged to the jury (see People v Danielson,

9 NY3d 342, 349), we conclude that the verdict is not against the

weight of the evidence (see generally People v Bleakley, 69 NY2d 490,

495). 
-2- 294 

KA 11-01265 

Defendant failed to preserve for our review his contentions that

he was deprived of a fair trial based on prosecutorial misconduct

during examination of one of the People’s witnesses and during

summation (see People v Brown, 94 AD3d 1461, 1462, lv denied 19 NY3d

995). In any event, those contentions are without merit. The

prosecutor did not mislead the jury regarding the function of a

judicial subpoena testificandum or the power of a prosecutor to compel

testimony. While a subpoena may secure the attendance of a witness at

trial (see CPL 610.10 [1], [2]), contrary to defendant’s contention,

it does not assure the cooperation of the witness (see generally

People v Woodruff, 26 AD2d 236, 237, affd 21 NY2d 848). We further

conclude that the prosecutor did not vouch for a witness for the

People. An argument by counsel on summation, based on the record

evidence and reasonable inferences drawn therefrom, that his or her

witnesses have testified truthfully is not vouching for their

credibility (see People v Bailey, 58 NY2d 272, 277; cf. United States

v Spinelli, 551 F3d 159, 168-169, cert denied 558 US 939; United

States v Rivera, 22 F3d 403, 437-438).

We reject defendant’s related contention that he was denied

effective assistance of counsel based on defense counsel’s failure to

object to the prosecutor’s alleged misconduct. As noted, neither the

prosecutor’s questioning of the People’s witness under subpoena nor

her comments during summation concerning the witness’s willingness to

testify constituted improper vouching or other prosecutorial

misconduct. Thus, defense counsel’s failure to object to the

allegedly improper questions to the witness under subpoena or the

comments by the prosecutor on summation does not constitute

ineffective assistance of counsel (see generally People v Brown, 17

NY3d 742, 743-744). Viewing the evidence, the law and the

circumstances of this case, in totality and as of the time of the

representation, we conclude that defendant received meaningful

representation (see generally People v Baldi, 54 NY2d 137, 147). 

Entered: May 8, 2015 Frances E. Cafarell

Clerk of the Court