        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
