People v. Gierszewski

Appellate Division of the Supreme Court of New York

People v. Gierszewski

226 A.D.2d 1099, 641 N.Y.S.2d 766, 1996 N.Y. App. Div. LEXIS 5574

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 1996

StatusPublished

Cited by1 cases

This text of 226 A.D.2d 1099 (People v. Gierszewski) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Gierszewski, 226 A.D.2d 1099, 641 N.Y.S.2d 766, 1996 N.Y. App. Div. LEXIS 5574 (N.Y. Ct. App. 1996).

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Opinion

Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that County Court erred in denying his motion to exclude the testimony of all witnesses to the Ames Department Store incident as a sanction for a Rosario violation. While the People’s failure to disclose before the suppression hearing police notes of those witnesses’ interviews constitutes a Rosario violation (see, People v Malinsky, 15 NY2d 86), it is undisputed that defense counsel received the notes before trial. The remedy for a pretrial Rosario violation is a new suppression hearing (see, People v Banch, 80 NY2d 610, 617-619). Because defendant did not seek that relief, any claim arising from the possible violation of his Rosario rights must be deemed abandoned (see generally, People v Graves, 85 NY2d 1024, 1027; People v Thomas, 226 AD2d 1071 [decided herewith]; People v Tamayo, 222 AD2d 321).

We likewise reject the contention that the evidence of the [1100]*1100showup identification should have been suppressed. Because the showup was conducted at the scene of the crime shortly after its commission, it was an appropriate means of securing a prompt identification and was not unduly suggestive (see, People v Love, 57 NY2d 1023; People v Torres, 210 AD2d 875, lv denied 85 NY2d 944; People v Boles, 198 AD2d 837, lv denied 83 NY2d 802).

We further conclude that prosecutorial misconduct on summation, which included "injecting the integrity of the District Attorney’s office into the case” (People v Carter, 40 NY2d 933, 934), does not warrant reversal because defendant was not thereby deprived of a fair trial (see, People v Woodard, 112 AD2d 454, lv denied 66 NY2d 769; People v Rubin, 101 AD2d 71, 77).

We have reviewed the remaining contentions raised by defense counsel and by defendant pro se and conclude that they are without merit. (Appeal from Judgment of Niagara County Court, Hannigan, J.—Sexual Abuse, 1st Degree.) Present—Lawton, J. P., Fallon, Callahan, Doerr and Boehm, JJ.

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Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that County Court erred in denying his motion to exclude the testimony of all witnesses to the Ames Department Store incident as a sanction for a Rosario violation. While the People’s failure to disclose before the suppression hearing police notes of those witnesses’ interviews constitutes a Rosario violation (see, People v Malinsky, 15 NY2d 86), it is undisputed that defense counsel received the notes before trial. The remedy for a pretrial Rosario violation is a new suppression hearing (see, People v Banch, 80 NY2d 610, 617-619). Because defendant did not seek that relief, any claim arising from the possible violation of his Rosario rights must be deemed abandoned (see generally, People v Graves, 85 NY2d 1024, 1027; People v Thomas, 226 AD2d 1071 [decided herewith]; People v Tamayo, 222 AD2d 321).

We likewise reject the contention that the evidence of the [1100]*1100showup identification should have been suppressed. Because the showup was conducted at the scene of the crime shortly after its commission, it was an appropriate means of securing a prompt identification and was not unduly suggestive (see, People v Love, 57 NY2d 1023; People v Torres, 210 AD2d 875, lv denied 85 NY2d 944; People v Boles, 198 AD2d 837, lv denied 83 NY2d 802).

We further conclude that prosecutorial misconduct on summation, which included "injecting the integrity of the District Attorney’s office into the case” (People v Carter, 40 NY2d 933, 934), does not warrant reversal because defendant was not thereby deprived of a fair trial (see, People v Woodard, 112 AD2d 454, lv denied 66 NY2d 769; People v Rubin, 101 AD2d 71, 77).

We have reviewed the remaining contentions raised by defense counsel and by defendant pro se and conclude that they are without merit. (Appeal from Judgment of Niagara County Court, Hannigan, J.—Sexual Abuse, 1st Degree.) Present—Lawton, J. P., Fallon, Callahan, Doerr and Boehm, JJ.

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226 A.D.2d 1099, 641 N.Y.S.2d 766, 1996 N.Y. App. Div. LEXIS 5574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gierszewski-nyappdiv-1996.

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