People v. Moxley

Appellate Division of the Supreme Court of New York

People v. Moxley

236 A.D.2d 778, 653 N.Y.S.2d 887, 1997 N.Y. App. Div. LEXIS 1693

Appellate Division of the Supreme Court of the State of New York·Decided February 7, 1997·Published·Cited by 1 cases

Opinion

—Judgment affirmed. Memorandum: County Court properly denied defendant’s motion to suppress the identification testimony of a prosecution witness. That witness knew defendant and thus had an independent basis for her in-court identification of him (see, People v Rodriguez, 79 NY2d 445, 450-452; People v Hughes, 136 AD2d 916).

Defendant argues that the court’s charge to the jury was incomplete concerning a defense witness who on cross-examination on collateral issues invokes his right to remain silent (see, 1 CJI[NY] 7:14, at 289). By failing to object to the charge as given or to request a more complete charge, defendant failed to preserve that argument for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Defendant did not object to comments of the prosecutor on summation or to the prosecutor’s cross-examination of a defense witness, thereby failing to preserve for our review his present argument that the prosecutor’s misconduct deprived him of a fair trial (see, CPL 470.05 [2]). Defendant received effective assistance of trial counsel (see, People v Baldi, 54 NY2d 137, 147). Upon the record before us, we cannot review the [779]*779argument that defendant was denied effective assistance of appellate counsel. Defendant’s remedy is to seek a writ of error coram nobis (see, People v Bachert, 69 NY2d 593).

All concur, Wesley, J., not participating. (Appeal from Judgment of Monroe County Court, Egan, J.—Murder, 2nd Degree.) Present—Denman, P. J., Pine, Wesley, Doerr and Balio, JJ.

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—Judgment affirmed. Memorandum: County Court properly denied defendant’s motion to suppress the identification testimony of a prosecution witness. That witness knew defendant and thus had an independent basis for her in-court identification of him (see, People v Rodriguez, 79 NY2d 445, 450-452; People v Hughes, 136 AD2d 916).

Defendant argues that the court’s charge to the jury was incomplete concerning a defense witness who on cross-examination on collateral issues invokes his right to remain silent (see, 1 CJI[NY] 7:14, at 289). By failing to object to the charge as given or to request a more complete charge, defendant failed to preserve that argument for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Defendant did not object to comments of the prosecutor on summation or to the prosecutor’s cross-examination of a defense witness, thereby failing to preserve for our review his present argument that the prosecutor’s misconduct deprived him of a fair trial (see, CPL 470.05 [2]). Defendant received effective assistance of trial counsel (see, People v Baldi, 54 NY2d 137, 147). Upon the record before us, we cannot review the [779]*779argument that defendant was denied effective assistance of appellate counsel. Defendant’s remedy is to seek a writ of error coram nobis (see, People v Bachert, 69 NY2d 593).

All concur, Wesley, J., not participating. (Appeal from Judgment of Monroe County Court, Egan, J.—Murder, 2nd Degree.) Present—Denman, P. J., Pine, Wesley, Doerr and Balio, JJ.

People v. Moxley, 236 A.D.2d 778, 653 N.Y.S.2d 887, 1997 N.Y. App. Div. LEXIS 1693 (N.Y. Ct. App. 1997).

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