        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1207
KA 15-00106
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRYL JONES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING 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 March 26, 2013. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts), attempted robbery in the first degree, 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]), arising from the shooting of a drug
dealer during a robbery, defendant contends that Supreme Court
deprived him of due process and a fair trial by admonishing his trial
attorney that it would permit the People to introduce additional
evidence if counsel made certain arguments in summation. We reject
that contention.

     During defendant’s first trial, his attorney argued that the jury
should not accept the identification testimony of an eyewitness
because defendant was the only black male in the front of the
courtroom and the perpetrator was also a black male, and thus the
identification was not sufficiently certain. The jury at defendant’s
first trial was unable to reach a verdict. Prior to the start of the
second trial, the People moved in limine to preclude defense counsel
from making that argument. The prosecutor contended that the witness
had actually identified defendant from a photo array prior to trial,
but the People were precluded from introducing such evidence on their
direct case (see People v Lindsay, 42 NY2d 9, 12; People v Ofield, 280
AD2d 978, 978, lv denied 96 NY2d 832), and defense counsel therefore
was creating a misimpression that the witness had not previously
identified defendant. In the alternative, the People sought
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                                                         KA 15-00106

permission to reopen their case-in-chief if defense counsel reiterated
his argument from the first trial. The court denied the motion,
stating that it would not, prior to trial, preclude defense counsel
from making that argument. The court also stated, however, that it
“would entertain a motion by the People to reopen the proof” if
defense counsel’s summation created a “misleading impression” that the
witness “had been unable to identify defendant prior to trial.”
During summation, defense counsel made a very similar argument to the
argument made during the first trial, the People objected and moved to
reopen their proof, and the court denied the motion, concluding that
defense counsel had not created a misleading impression.

     We reject defendant’s contention that the court’s initial ruling
and additional statement had a chilling effect on defense counsel’s
summation. Counsel made virtually the same argument in the second
trial as he made in the first trial, which belies defendant’s
contention that there was a chilling effect. Contrary to defendant’s
further contention, the court’s statements regarding reopening the
proof were correct. Although it is well settled that “evidence of a
witness’s pretrial photographic identification of an accused is not
admissible in the prosecution’s case-in-chief” (People v Grajales, 8
NY3d 861, 862), a defendant may open the door to evidence of such an
identification (see People v Lago, 60 AD3d 784, 784, lv denied 13 NY3d
746; People v Carvalho, 60 AD3d 1394, 1395, lv denied 13 NY3d 742;
People v Davenport, 35 AD3d 1277, 1278, lv denied 9 NY3d 842,
reconsideration denied 9 NY3d 922; see also People v Perkins, 15 NY3d
200, 205-206). Thus, a court will properly conclude that a defendant
has opened the door to the admission of evidence that a witness has
identified defendant from a photo array where, inter alia, the
defendant “sought to create the false impression that a prosecution
witness was unable to identify him from photographs” (People v
Francis, 123 AD2d 714, 714; see People v Sherrod, 240 AD2d 273, 274,
lv denied 90 NY2d 1014), and “[t]he prejudice to the People caused by
this misimpression [would be] of sufficient magnitude to warrant
reopening the case during summation” (People v De Los Angeles, 270
AD2d 196, 199, lv denied 95 NY2d 889; see People v Loney, 43 AD3d 726,
727, lv denied 9 NY3d 991; see generally People v Philips, 120 AD3d
1266, 1268, lv denied 24 NY3d 1122). Consequently, the court did not
err in explaining to defense counsel that it would entertain the
People’s motion to reopen their case if defendant created the
misimpression that the witness was unable to identify defendant before
trial.

     Defendant failed to preserve for our review his challenge to the
legal sufficiency of the evidence because “his motion for a trial
order of dismissal was not specifically directed at the grounds
advanced on appeal” (People v Wright, 107 AD3d 1398, 1401, lv denied
23 NY3d 1026; see People v Gray, 86 NY2d 10, 19). In any event,
viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that the evidence is
legally sufficient to support the conviction with respect to all of
the charges (see generally People v Bleakley, 69 NY2d 490, 495).
Furthermore, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
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                                                         KA 15-00106

349), we conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). “Even assuming,
arguendo, that a different verdict would not have been unreasonable,
[we note that] ‘the jury was in the best position to assess the
credibility of the witnesses and, on this record, it cannot be said
that the jury failed to give the evidence the weight it should be
accorded’ ” (People v Chelley, 121 AD3d 1505, 1506, lv denied 24 NY3d
1218, reconsideration denied 25 NY3d 1070; see People v Clark, 142
AD3d 1339, 1341).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
