The People, Respondent,v.Kenneth Padilla, Appellant.

Brief

N.Y.May 2, 2013

To be argued by MATTHEW T. MURPHY (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - KENNETH PADILLA, Defendant-Appellant. BRIEF AND APPENDIX FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov CHRISTOPHER P. MARINELLI MATTHEW T. MURPHY ASSISTANT DISTRICT ATTORNEYS Of Counsel NOVEMBER 13, 2012 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 1 THE SUPPRESSION HEARING ..................................................................................... 4 The People’s Case ................................................................................................................... 4 The Defense Case ....................................................................................................... 8 Arguments .................................................................................................................. 10 The Court’s Decision................................................................................................ 11 THE EVIDENCE AT TRIAL .......................................................................................... 14 The People’s Case ..................................................................................................... 14 The Defense Case ..................................................................................................... 19 POINT I THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS THE GUN .................... 22 POINT II THE PEOPLE PROVED ALL ELEMENTS OF DEFENDANT’S CRIME BEYOND A REASONABLE DOUBT. ......................................................................................................... 33 POINT III NOTHING IN THE PEOPLE’S SUMMATION OR REDIRECT EXAMINATION OF OFFICER WHITE WAS IMPROPER ......................................................................................... 38 CONCLUSION ................................................................................................................... 52 -ii- TABLE OF AUTHORITIES FEDERAL CASES Colorado v. Bertine, 479 U.S. 367 ................................................................................ 24, 28 Coolidge v. New Hampshire, 403 U.S. 443 (1971) .......................................................... 24 Florida v. Wells, 495 U.S. 1 (1990) ..................................................................................... 28 Illinois v. Lafayette, 462 U.S. 640 (1983) ........................................................................... 26 Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) ................................................................ 25 United States v. Arango-Correa, 851 F.2d 54 (2d Cir. 1988) .......................................... 28 United States v. Chadwick, 433 U.S. 1 (1977) ................................................................... 26 United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993) ............................ 25 United States v. Lopez, 547 F.3d 364 (2d Cir. 2008) .................................................. 31-32 United States v. Scott, 223 Fed.Appx. 80 (2d Cir. 2007) ................................................. 24 STATE CASES County of Nassau v. Canavan, 1 N.Y.3d 134 (2003) ....................................................... 25 People v. Balls, 69 N.Y.2d 641 (1986) .......................................................................... 43-44 People v. Bleakley, 69 N.Y.2d 490 (1987) ......................................................................... 33 People v. Charleston, 56 N.Y.2d 886 (1982) ..................................................................... 43 People v. Crimmins, 36 N.Y.2d 230 (1975) ...................................................................... 51 People v. D’Abate, 37 N.Y.2d 922 (1975) ......................................................................... 27 People v. Edwards, 14 N.Y.3d 741 (2010) ........................................................................ 29 People v. Gaimari, 176 N.Y. 84 [1903] .............................................................................. 34 People v. Galak, 80 N.Y.2d 715 (1993) ................................................................. 25-26, 29 People v. Galloway, 54 N.Y.2d 396 (1981) ................................................................. 44, 47 -iii- People v. Gomez, 13 N.Y.3d 6 (2009) ......................................................................... 26, 31 People v. Gonzalez, 62 N.Y.2d 386 (1984) ................................................................. 26, 28 People v. Grear, 232 A.D.2d 578 (2d Dept. 1996) ........................................................... 24 People v. Halm, 81 N.Y.2d 819 (1993) .............................................................................. 44 People v. Harris, 98 N.Y.2d 452 (2002) ............................................................................. 43 People v. Henderson, 13 N.Y.3d 844 (2009) .............................................................. 46, 48 People v. Jackson, 65 N.Y.2d 265 (1985) .......................................................................... 35 People v. Jardin, 88 N.Y.2d 956 (1996) ............................................................................. 37 People v. Johnson, 1 N.Y.3d 252 (2003) ............................................................... 13, 25, 30 People v. Kello, 96 N.Y.2d 740 (2001) .............................................................................. 43 People v. Kennedy, 47 N.Y.2d 196 (1979) .................................................................. 33, 35 People v. Lemmons, 40 N.Y.2d 505 (1976) ................................................................. 34-37 People v. Lovello, 1 N.Y.2d 436 (1956) ............................................................................ 48 People v. Manini, 79 N.Y.2d 561 (1992) ........................................................................... 34 People v. Morgan, 66 N.Y.2d 255, cert. denied, 476 U.S. 1120 (1986) ................................................................................ 51 People v. Moye, 12 N.Y.3d 743 (2009) .............................................................................. 48 People v. Muhammad, 16 N.Y.3d 184 (2011) .................................................................. 34 People v. Ochoa, 14 N.Y.3d 180 (2010) ............................................................................ 50 People v. Padilla, 89 A.D.3d 505 (1st Dept. 2011) ............................................. 3-4, 29, 35 People v. Romero, 7 N.Y.3d 633 (2006) ........................................................................... 34 People v. Safian, 46 N.Y.2d 181 (1978) ....................................................................... 45, 51 People v. Santiago, 52 N.Y.2d 865 (1981) ......................................................................... 44 People v. Saunders, 85 N.Y.2d 339 (1995) ........................................................................ 34 -iv- People v. Seit, 86 N.Y.2d 92 (1995) ................................................................................... 45 People v. Smith, 82 N.Y.2d 731 (1993) ............................................................................. 45 People v. Spinelli, 35 N.Y.2d 77 (1974) ............................................................................. 24 People v. Sullivan, 29 N.Y.2d 69 (1971) ............................................................................ 25 People v. Tejeda, 73 N.Y.2d 958 (1989) ............................................................................ 33 People v. Tonge, 93 N.Y.2d 838 (1999) ............................................................................ 43 People v. Verez, 83 N.Y.2d 921 (1994) ....................................................................... 35, 37 STATE STATUTES C.P.L. § 470.05(2) ............................................................................................................ 23-24 C.P.L. § 470.35(1) ............................................................................................................ 23-24 N.Y.C. Code § 14-140(e)(1) ................................................................................................. 25 Penal Law § 10.00(8) ............................................................................................................ 34 Penal Law § 15.00(2) ............................................................................................................ 34 Penal Law § 265.03(3) ................................................................................................... 1-2, 34 Penal Law § 265.15(3) ................................................................................................. 4, 34-35 Vehicle and Traffic Law § 1192(3) ....................................................................................... 2 OTHER AUTHORITIES Kamins, Barry, New York Search and Seizure § 5.05(6)(a) (Matthew Bender 2012) ........................................................................................................................... 25, 28 Muldoon, Gary, Handling a Criminal Case in New York, § 9:82 (2012) ................. 24, 27 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KENNETH PADILLA , Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Theodore T. Jones, defendant Kenneth Padilla appeals from a November 10, 2011, order of the Appellate Division, First Department. By that order, the Appellate Division affirmed a September 8, 2010, judgment of the Supreme Court, New York County, convicting defendant, after a jury trial, of one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]). The court sentenced defendant, as a predicate violent felon, to a determinate prison term of seven years, to be followed by five years of post-release supervision. Defendant is currently incarcerated pursuant to that judgment. INTRODUCTION On June 7, 2008, at approximately 2:15 a.m., Police Officers Christopher White and Ionel Cercel were patrolling in a marked police car near the corner of Clinton and -2- Henry Streets in Manhattan. From their car, the officers saw a silver Lexus sports utility vehicle (“SUV”) parked illegally at a fire hydrant and obstructing traffic. Officer White activated his patrol lights and defendant quickly stepped out of the Lexus. White stepped out of his car and noticed that the engine in defendant’s car was still running. White asked defendant to return to the Lexus, but defendant refused. Defendant’s eyes were red and he was unable to walk straight. Officer White placed defendant under arrest for operating a car while intoxicated. Police Officer William Lanzisero and Sergeant Walsh arrived at the scene, and Walsh assigned Lanzisero to be the arresting officer. Lanzisero drove defendant to the police precinct in his patrol car, and another officer drove defendant’s car to the precinct. Later that morning, Officer Lanzisero conducted an inventory search of the Lexus. When Lanzisero opened the spare tire compartment in the trunk he noticed a black leather bag. Lanzisero opened the bag and recovered a loaded .357 magnum revolver and nine bullets. By New York County Indictment Number 752/09, filed on February 23, 2009, a grand jury charged defendant with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]) and Operating a Motor Vehicle Under the Influence of Alcohol (Vehicle and Traffic Law § 1192[3]). Prior to trial, defendant moved to suppress the gun and the bullets recovered from his car. On October 14, 2009, the Honorable Daniel Conviser held a hearing and, by written decision and order, dated November 18, 2009, he denied defendant’s motion. On January 27, 2010, defendant -3- proceeded to trial before Justice Conviser and a jury. On February 9, 2010, the court declared a mistrial because the jury was unable to reach a verdict. On August 16, 2010, defendant proceeded to trial before the Honorable Wayne M. Ozzi and a jury. On August 26, 2010, the jury convicted defendant of gun possession and acquitted defendant of operating a motor vehicle under the influence of alcohol. On September 8, 2010, the court sentenced defendant as set forth above. On appeal to the Appellate Division, defendant claimed that the suppression court improperly denied his motion to suppress the weapon. In addition, defendant challenged the legal sufficiency and weight of the evidence that he possessed the loaded handgun. Finally, defendant argued that portions of the People’s summation and redirect examination of a witness deprived defendant of a fair trial. In an order dated November 10, 2011, the Appellate Division unanimously affirmed defendant’s conviction. First, the court rejected defendant’s suppression claim. In that regard, the court found unpreserved a claim by defendant that the police had improperly impounded his car. The court further held that Officer Lanzisero had “conducted a proper inventory search” of defendant’s car, which was “supported by sufficient documentation.” People v. Padilla, 89 A.D.3d 505 (1st Dept. 2011). Next, the court held that the verdict was based on legally sufficient evidence and not against the weight of the evidence. In particular, the Appellate Division found that “defendant was the owner, driver, and sole occupant” of the vehicle from which the weapon was recovered, and that “the evidence, even without the -4- automobile presumption” of Penal Law § 265.15(3), “warrants the inference that [defendant] knew there was a firearm in his car.” Id. at 505-06. Finally, the court held that defendant’s claims of prosecutorial misconduct did not warrant reversal. Id. at 505. On appeal to this Court, defendant again argues that the hearing court improperly denied his motion to suppress the handgun. Defendant further challenges the sufficiency of the evidence and argues that he was prejudiced by the People’s summation and redirect examination of a witness. THE SUPPRESSION HEARING The People’s Case On June 7, 2008, at approximately 2:15 a.m., Police Officers CHRISTOPHER WHITE and Ionel Cercel were driving in a marked police car east on Henry Street toward Clinton Street, in Manhattan (White: 8 [A12]).1 White noticed a Lexus SUV that was parked in front of a fire hydrant and blocking traffic (White: 9 [A13]). 1 Defense counsel submitted certain portions of the record in an appendix and other portions in a supplemental appendix. The original appendix was Bates-stamped, but the supplemental appendix was not. For this reason, the People have included citations to the original transcript in all citations; for those portions included in defendant’s original appendix, the People have also included the Bates-stamp number. Citations preceded by “A” are to defendant’s main appendix. Citations preceded by “RA” are to respondent's appendix filed with this brief. -5- Defendant was sitting in the driver’s seat of the Lexus and the car’s engine was running (White: 10 [A14]). White activated his “emergency lights” and stepped out of his car (White: 9-10 [A13-14]). Defendant immediately opened his door and stepped out of the Lexus (White: 10 [A14]). White asked defendant to “return to his vehicle,” but defendant “refused” (White: 10 [A14]). White noticed that defendant had watery eyes and slurred speech and that he was “unsteady on his feet” (White: 10 [A14]). Based on those observations, White determined that defendant was “intoxicated” (White: 11 [A15]). Accordingly, Officer White attempted to place defendant under arrest (White: 11 [A15]). Defendant became “belligerent,” began “yelling obscenities,” and “refus[ed] to place his hands behind his back” (White: 12 [A16]). Another team of officers was called to the scene, including Police Officer WILLIAM LANZISERO and Sergeant Walsh (Lanzisero: 37 [A41]). The officers managed to place defendant under arrest, and they searched defendant for weapons and contraband (White: 24-25, 34 [A28-29, 38]). Lanzisero was assigned to be the “arresting officer,” and he took custody of defendant (Lanzisero: 37-38 [A41-42]). Lanzisero drove defendant to the police precinct, while another officer drove defendant’s Lexus to the precinct (Lanzisero: 32 [A36]). As the arresting officer, Lanzisero was required to remove and inventory defendant’s belongings from defendant’s car (Lanzisero: 40, 45 [A44, 49]). The -6- purpose of this “inventory search” was to “protect property, insure against unwanted claims of theft and protect uniformed members of the service and others against dangerous instruments” (Lanzisero: 45 [A49]; People’s Hearing Exhibit 1A and 1B: New York City Police Department Patrol Guide). Lanzisero had conducted “dozens” of inventory searches throughout his career (Lanzisero: 45 [A49]). Lanzisero started his inventory search at approximately 4:00 a.m. (Lanzisero: 57 [A61]). A short time later, a woman arrived at the precinct and informed Lanzisero that she was defendant’s sister (Lanzisero: 71 [A75]). She also told Lanzisero that she was an “MTA” police officer (Lanzisero: 72 [A76]). Lanzisero brought the woman to defendant, who confirmed that she was his sister (Lanzisero: 71 [A75]). As a “courtesy,” Lanzisero offered to let defendant’s sister take some of defendant’s belongings (Lanzisero: 58, 73 [A62, 77]). It was “customary” practice throughout the police department to return property to a defendant’s family member (Lanzisero: 101-102 [A105-06]). Lanzisero and defendant’s sister removed various items from the Lexus and placed them into two clear, plastic garbage bags (Lanzisero: 58-59, 75, 78 [A62-63, 79, 82]). Lanzisero also gave her certain items that defendant had in his pockets when he was arrested (Lanzisero: 81 [A85]). Defendant’s sister signed Lanzisero’s memo book to acknowledge that she had taken some of defendant’s belongings, including defendant’s iPod, cellular telephone, and keys (Lanzisero: 59, 79, 88 [A63, 83, 92]; People’s Exhibits 3A-3D: Copies of Lanzisero’s -7- Memo Book [RA24]). When they were finished, Lanzisero locked the car and returned to the precinct (Lanzisero: 94-95 [A98-99]). At 6:30 a.m., Lanzisero resumed his inventory search of the Lexus (Lanzisero: 57, 94, 106 [A61, 98, 110]). Lanzisero noticed that some of the car’s seat “panels” were “askew” (Lanzisero: 95 [A99]). Lanzisero knew that people sometimes hid drugs behind these panels, and he “opened up the panel,” to see if there was any evidence of narcotics (Lanzisero: 96 [A100]). Lanzisero did not find anything in this area, and he continued his inventory search (Lanzisero: 95-96 [A99-100]). In the trunk area, Lanzisero saw a stereo system, which was comprised of “a lot of speakers,” and “basically filled up the entire [trunk] space” (Lanzisero: 59-60 [A63- 64]). The sound system did not look like “factory speakers” that had been installed by the manufacturer (Lanzisero: 60 [A64]). Because the sound system had been “added onto the car,” it was not considered “part of the vehicle” and “had to be inventoried” (Lanzisero: 60 [A64]). Lanzisero unscrewed the speakers, disconnected their wires, and vouchered the speakers (Lanzisero: 60-61 [A64-65]; People’s Hearing Exhibits 2A-2C: Property Clerk Invoices [RA19-21]). Because he had difficulty finding a screwdriver, it took Lanzisero between 45 minutes and an hour to remove the speakers (Lanzisero: 61 [A65]). Ultimately, Lanzisero prepared a property clerk invoice for 23 items recovered from the Lexus and taken into police custody, including the speakers (People’s Hearing Exhibits 2A-2C [RA19-21]). -8- After he removed the speakers, Lanzisero opened the spare tire compartment in the trunk (Lanzisero: 61 [A65]). Inside the trunk, Lanzisero found a black leather bag (Lanzisero: 61 [A65]). Lanzisero looked inside the bag, and found a silver .357 Magnum revolver (Lanzisero: 62 [A66]). Lanzisero then rearrested defendant for possession of a loaded weapon (Lanzisero: 62 [A66]). The Defense Case On June 7, 2008, at about 1:10 a.m., defendant drove his Lexus SUV to the corner of East 9th Street and Avenue D to pick up his girlfriend, LUZ MARTINEZ (Martinez:113, 122-23, 126 [A117, 126-27, 130]).2 Defendant told Martinez that he was tired and asked her to drive (Martinez: 123-24 [A127-28]). Martinez drove them to “the Seaport,” where they remained for about an hour and a half (Martinez: 123- 25[A127-29]). Martinez drank a bottle of water; neither defendant nor Martinez drank any alcohol (Martinez: 125 [A129]). Martinez drove defendant’s car from the Seaport to the corner of Clinton and Henry Streets (Martinez: 113-14, 126 [A117-18, 130]). She did not park the car in front of a fire hydrant or blocking traffic (Martinez: 126 [A130]). Martinez and defendant walked into a grocery store to “grab something to drink” (Martinez: 113-14, 2 Martinez did not know whether defendant was married, but she was aware that defendant lived with another woman with whom defendant had children (Martinez: 119-120 [A123-24]). -9- 126 [A117-18, 130]). When they left the car, the car doors were closed, the key was in the ignition, and the engine was running (Martinez: 130 [A134]). Inside the grocery store, defendant purchased a drink for himself (Martinez: 127-28 [A131-32]). Martinez asked him to “grab [her] cell phone” from the driver’s seat of defendant’s car (Martinez: 127-28 [A131-32]). Martinez remained inside the store to pay for her drink and defendant walked to the car (Martinez: 126, 130 [A130, 134]). As defendant reached through the open driver’s side window to retrieve the phone, police officers “approached him and told him to get back into the vehicle” (Martinez: 129-131 [A133-135]). Defendant attempted to explain that he “wasn’t in the vehicle” (Martinez: 131[A135]). The officers then placed defendant under arrest (Martinez: 115-16 [A119-120]). A “Chinese” police officer drove Martinez to the police precinct in defendant’s car (Martinez: 116 [A120]). The officer parked the Lexus “across from the precinct” and Martinez walked into the precinct (Martinez: 116-17 [A120-21]). At 2:45 a.m., Martinez walked outside and saw “four or five officers searching [defendant’s] vehicle” with flashlights (Martinez: 117-18 [A121-22]). The officers stopped searching the vehicle when they noticed Martinez (Martinez: 118 [A122]). At about 4:00 a.m., defendant called his sister, YVETTE VASQUEZ, to come to the precinct, and pick up his personal belongings (Vasquez: 136 [A140]). At approximately 4:20 a.m., Vasquez arrived at the precinct, and identified herself to one of the police officers as an MTA police officer (Vasquez: 135-37 [A139-141]). She -10- stated that she was defendant’s sister, and the officer allowed Vasquez to speak with defendant (Vasquez: 137 [A141]). Vasquez also spoke with Officer Lanzisero, and the two realized that they had graduated from the police academy in the same class (Vasquez: 137 [A141]). Lanzisero gave Vasquez some of the items that had been in defendant’s pockets, including his wallet (Vasquez: 138[A142]). Vasquez signed Lanzisero’s memo book to verify that she had received these items (Vasquez: 138 [A142]). Lanzisero asked Vasquez if she wanted to take home some of defendant’s property from defendant’s car (Vasquez: 139 [A143]). Vasquez said that she did, and Lanzisero retrieved two clear, plastic, garbage bags from the precinct (Vasquez: 139 [A143]). Lanzisero and Vasquez then filled the garbage bags with items in defendant’s car (Vasquez: 139-140 [A143-44]). When they were finished, the only items left in the car were the speakers in the trunk (Vasquez: 139-140 [A143-44]). Vasquez did not take the speakers “because they were [too] heavy” for her to carry (Vasquez: 140 [A144]). Lanzisero did not write down what items they were removing from the car (Vasquez: 139-140 [A143-44]). Vasquez then thanked Lanzisero and left the precinct (Vasquez: 141 [A145]). Arguments At the close of the hearing, defense counsel argued that Lanzisero had been “looking for evidence,” instead of performing an inventory search (A152-53). Counsel also argued that Lanzisero did not “follow proper police procedures,” and -11- complained that Lanzisero “gave the defendant’s sister many items without writing them down” (A153). Thus, according to counsel, Lanzisero had not prepared a “meaningful inventory list” of the items recovered from defendant’s car (A154). The People argued that Lanzisero had conducted a valid inventory search. First, the People noted that the officers properly arrested defendant for driving while intoxicated, and properly impounded defendant’s car (A159-61). In particular, the People noted that, for 15 years, it had been standard procedure to impound cars in drunk driving cases for prospective forfeiture proceedings (A160-61). Regarding the search, the prosecutor argued that, although Lanzisero did not “itemize[]” every piece of property that he turned over to defendant’s sister, he did record numerous items “between his memo book and the property clerk invoice” (A161, 163). Therefore, the People asserted, Lanzisero had prepared a “meaningful list of the inventory” in defendant’s car (A163). The Court’s Decision In a written decision dated November 18, 2009, Justice Conviser denied defendant’s motion in its entirety. At the outset, the court credited the testimony of Officer White, Officer Lanzisero, and Yvette Vasquez. The court “did not credit the testimony” of defendant’s girlfriend, Luz Martinez. The court cited “a number of reasons” for this decision, including the nature of her relationship with defendant, and the absence of “persuasive evidence” that Officer White “had a motive to commit perjury and harass and then arrest the Defendant for no reason” (RA12). -12- In his conclusions of law, Justice Conviser held that, when White observed defendant’s Lexus parked illegally, he was justified in approaching the vehicle (RA11). The court further concluded that Officer White had probable cause to arrest defendant once he stepped out of the driver’s side of the Lexus and appeared intoxicated (RA11-12). The court also held that the police were permitted to take custody of, and commence forfeiture proceedings with respect to, property that was “the instrumentality of a crime,” including in “drunk driving cases” (RA12). Regarding the ensuing search, the court held that Lanzisero conducted a “valid inventory search” of defendant’s car (RA18). The People had introduced the NYPD Patrol Guide into evidence, which established a policy for “conducting inventory searches which comports with due process.” According to the court, it was “clear” that Officer Lanzisero had “complied with the requirements of the Patrol Guide in fundamental respects” (RA14). The court acknowledged that Lanzisero had “deviated from the Patrol Guide in certain respects,” but held that “those deviations” were not “of a sufficient magnitude” to undermine the validity of the search. The court noted that Lanzisero had “testified credibly that he inventoried the contents of [defendant’s] car pursuant to the NYPD’s standard policy for inventory searches.” Although Lanzisero looked for narcotics inside the “back panels of Defendant’s front seats” after he noticed that the panels were “askew,” this “one action” did not “transform his extensive inventory search into a pretextual search for incriminating evidence.” Moreover, the court -13- pointed out that “no incriminating evidence was in fact recovered from those panels” (RA14). The court also held that the remainder of Lanzisero’s search was valid. The court found that the speakers were “not an original part of the automobile and would not have been accepted by the police pound.” Therefore, the court concluded that Lanzisero was “justified in removing the speakers from the car.” Once the speakers were removed, Lanzisero properly recovered the gun from inside the black leather bag (RA15). Continuing, the court concluded that Lanzisero had completed a “detailed inventory” of defendant’s belongings, which were “retained by the police” (RA15). The court recognized that Lanzisero had deviated from Patrol Guide procedures by giving defendant’s sister some of defendant’s belongings, and listing only the more “significant” items that he turned over (RA15-16). However, citing People v. Johnson, 1 N.Y.3d 252, 256 (2003), the court held that Lanzisero had “completed the ‘hallmark of an inventory search: a meaningful inventory list’” of defendant’s property (RA15). The court went on to explain that Lanzisero’s search “did not in any way implicate” the evils that “the law governing inventory searches guards against.” In that regard, the court noted that Lanzisero had not “go[ne] on a general fishing expedition, without probable cause, to uncover incriminating evidence” (RA16-17). Rather, the court held, Lanzisero’s “purpose in conducting the search was clearly -14- administrative,” and was “distinguishable” from cases where the police conducted a search “for the purpose of uncovering evidence of a crime” (RA17). Finally, the court rejected defendant’s argument that the gun should be suppressed because Lanzisero turned over items to defendant’s sister. The court noted that, if it granted defendant’s suppression motion on this ground, it would not be “because Defendant’s rights were violated,” but “because [defendant] was provided with more beneficial treatment by the police than the law allowed.” Indeed, Lanzisero had “attempted to help and accommodate [defendant] by returning personal items” to defendant’s sister (RA17). For all these reasons, the court held that the gun was recovered pursuant to a lawful inventory search and denied defendant’s motion to suppress the gun (RA18). THE EVIDENCE AT TRIAL The People’s Case On June 7, 2008, at approximately 2:15 a.m., Police Officers CHRISTOPHER WHITE and IONEL CERCEL were traveling in a marked patrol car on Henry Street, in Manhattan (White: 74 [A173]; Cercel: 343). Near the intersection of Clinton Street, White and Cercel saw a silver Lexus SUV, which was parked at a fire hydrant and blocking traffic (White: 74 [A173]; Cercel: 343). White activated his patrol lights, and defendant opened the driver’s side door to the Lexus and “quickly” stepped out of the car from the driver’s seat (White: 75, 77 [A174, 176]; Cercel: 343-44). The lights on -15- defendant’s car were still on and the engine was running (White: 75 [A174]; Cercel: 345). There were no other passengers in the Lexus (White: 77 [A176]). Officer White asked defendant to return to his car, but defendant refused to comply with White’s request (White: 75 [A174]). Defendant started to walk toward White, but defendant had difficulty walking straight (White: 76, 78 [A175, 177]; Cercel: 346). Defendant’s eyes were red, and he smelled like he had been drinking an “alcoholic beverage” (White: 76, 129 [A175, 228]; Cercel: 344). Based on these factors, White and Cercel concluded that defendant was intoxicated (White: 78 [A177]; Cercel: 346). White attempted to place defendant under arrest for operating a motor vehicle while intoxicated (White: 78 [A177]). Officer WILLIAM LANZISERO and Sergeant Walsh received a call for backup, and they arrived at the corner of Henry and Clinton Streets at about 2:15 a.m. (Lanzisero: 187, 248 [A239, 281]). Defendant became “belligerent,” and began “yelling” and trying to “prevent[]” the officers from “putting the handcuffs on” him (White: 78-79 [A177-78]; Lanzisero: 189-250 [A241-283]; Cercel: 345-46). Officer White successfully handcuffed defendant, and he searched defendant’s pockets, waistband and shoes for weapons or other contraband (White: 83 [A182]; Lanzisero: 189 [A241]). -16- Sergeant Walsh assigned Officer Lanzisero to take custody of defendant and serve as the arresting officer (Walsh: 79-80 [A178-79]; Lanzisero: 190 [A242]).3 Lanzisero placed defendant in the back of his patrol car and drove to the precinct (Lanzisero: 195 [A247]). Lanzisero called the Intoxicated Driver Testing Unit (“IDTU”) to perform an intoxylizer test on defendant (Lanzisero: 269-270 [A302- 03]). At approximately 3:15 a.m., Police Officer MANUEL ALMANZAR, from the IDTU Unit, arrived at the precinct (Lanzisero: 269-270 [A302-303]; Almanzar: 145). Almanzar offered defendant an intoxylizer test to determine the amount of alcohol in defendant’s system, but defendant did not respond to Officer Almanzar (Almanzar: 145-46, 149-150; People’s Exhibit 2: Video of Defendant in IDTU Room). Meanwhile, another officer had driven defendant’s Lexus from the corner of Henry and Clinton Streets, and parked the car in front of the police precinct (Lanzisero: 190, 198, 260). Because defendant was the registered owner of the Lexus, his car was required to be “vouchered for forfeiture,” and held at an impound lot (Lanzisero: 199, 205 [A242, 257]). In addition, before Officer Lanzisero could send the car to the impound lot, he was required to remove and voucher everything in the car that was not originally installed by the car manufacturer (Lanzisero: 201 [A253]). The only items that he was permitted to leave inside the car before sending it to the 3 Officer White testified that he was covering another officer’s shift, and that processing a DWI was a “very lengthy process” (White: 81-82 [A180-81]). Because he was “already losing a day off,” if he were assigned to be the arresting officer, he would have been forced to work approximately 13 days in a row (White: 82 [A181]). -17- impound lot were the “spare tire, the jack that came with the vehicle, [and] the owner’s manual” (Lanzisero: 201 [A253]). Lanzisero allowed defendant to call his sister, so that she could retrieve defendant’s belongings from inside the car (Lanzisero: 201-202 [A253-54]).4 A short time later, after Lanzisero had started his inventory search of defendant’s car, defendant’s sister arrived at the precinct (Lanzisero: 199-201, 204 [A251-253, 256]). Defendant’s sister told Officer Lanzisero that she was an MTA police officer, and they realized that they had a mutual friend from the police academy (Lanzisero: 204, 279 [A256, 312]). Lanzisero asked defendant “if it was ok to release property to” defendant’s sister and defendant said that it was (Lanzisero: 202 [A254]). Lanzisero retrieved two plastic bags to hold defendant’s property and escorted defendant’s sister to his car (Lanzisero: 206, 279-280 [A258, 312-313]). Lanzisero and defendant’s sister removed defendant’s belongings from the car and placed them into the plastic bags (Lanzisero: 206, 280 [A258, 313]). Defendant’s sister signed Lanzisero’s memo book to acknowledge that Lanzisero had given her some of defendant’s property (Lanzisero: 206, 280 [A258, 313]). After about 30 minutes, defendant’s sister left the precinct (Lanzisero: 206 [A258]). 4Lanzisero testified that he regularly allowed defendants to call a family member to pick up their property, because it creates “less paperwork [for] the police department,” and because it “makes things easier for the defendant” (Lanzisero: 202 [A254]). -18- Lanzisero continued his inventory search in the trunk of defendant’s car, where defendant had installed a “big sound system,” comprised of four speakers and a subwoofer (Lanzisero: 206, 209, 231, 237 [A258, 261, 264, 270]; People’s Exhibit 3A: Property Voucher for Car Speakers). The speakers were screwed into the rear seats and floor of the trunk (Lanzisero 232-33 [A265-66]). These speakers prevented Lanzisero from accessing the spare tire compartment in the trunk (Lanzisero: 232-33 [A265-66]). Lanzisero unscrewed and removed the speakers, and he opened the spare tire compartment (Lanzisero: 232-33 [A265-66]). Inside the compartment, Lanzisero saw a black leather bag (Lanzisero: 233 [A266]; People’s Exhibit 7: Black Leather Bag). He opened the bag and found a loaded .357 magnum handgun, as well as nine bullets (Lanzisero: 233-34 [A266-67]; People’s Exhibit 5: .357 magnum). Using rubber gloves, Lanzisero unloaded the bullets from the gun (Lanzisero: 234 [A267]). He gave the gun to Police Officer PASQUALE CIOFFI, a member of the Evidence Collection Team (Lanzisero: 235 [A268]; Cioffi: 423). Officer Cioffi swabbed the gun for fingerprints, but did not find any (Cioffi: 425). ASAKO ISHII, a criminalist for the Office of the Chief Medical Examiner, tested the handgun and the black leather bag for DNA, but found an “insufficient sample” to create a DNA profile (Ishii: 374, 396-98). At trial, YAN WONG, a representative from the Department of Motor Vehicles, testified that defendant was the registered owner of the Lexus from January -19- 19, 2008 until October 27, 2008 (Wong: 314, 318-320; People’s Exhibit 8: Registration Abstract; People’s Exhibit 9: Title Record). The Defense Case On July 6, 2008, defendant and his girlfriend, LUZ MARTINEZ, spoke on the phone and “decided to meet up” (Martinez: 492-93, 509 [A369-370, 387]). Martinez knew that defendant was married, and that he lived with his wife and two children (Martinez: 492, 506-07 [A369, 384-85]). At about 11:00 p.m., defendant drove his Lexus to the home of Martinez’s uncle to pick her up (Martinez: 508-510 [A386-388]). When he arrived, defendant told Martinez that he was tired and asked her to drive (Martinez: 493, 510-511 [A371, 388-389]). Martinez drove them to the South Street Seaport, where they sat outside for about an hour and a half (Martinez: 493, 510 [A371, 388]). At approximately 1:30 a.m., they drove to a deli near the corner of Clinton and Madison Streets (Martinez: 493-94 [A371-72]). Martinez parked the car “illegally in front of [a] fire hydrant,” and she and defendant walked into the store to “buy a drink” (Martinez: 511-12 [A389- 390]).5 Martinez left the key in the car’s ignition, the car’s rear lights on, and the engine running (Martinez: 511-512 [A389-390]). As Martinez was paying for her drink, she asked defendant to go to the car and “retrieve [her] cell phone” from the “driver’s side” seat (Martinez: 494-95 [A372-73]). 5NAGEEB ALGUHIEM testified that he was working in the store that morning (Alguhiem: 568, 573). -20- Defendant walked to the car and “reached into the window and grabbed [Martinez’s] cell phone” (Martinez: 495 [A373]). At that moment, police officers began “yelling” at defendant, and “telling him to get back in the vehicle” (Martinez: 496 [A374]). Defendant told the officers that he “wasn’t in the vehicle” (Martinez: 496 [A374]). Martinez walked out of the store, told a police officer that she “was the one driving the vehicle,” and asked him “what was the problem” (Martinez: 496 [A374]). The officer told Martinez to “shut the fuck up” or she would be arrested (Martinez: 496 [A374]). Defendant was taken to the police precinct, and another officer offered to drive Martinez to the precinct in defendant’s Lexus (Martinez: 497-98, 516 [A375- 76, 394]). Martinez accepted, and she arrived at the precinct about five minutes later (Martinez: 498 [A376]). Martinez remained at the precinct for approximately two hours (Martinez: 501 [A379]). At some point, she stepped outside and saw four or five officers searching defendant’s vehicle (Martinez: 502 [A380]). One of the officers noticed that Martinez was looking at them, and “a few minutes later” the officers closed all the car doors and “stepped back inside the precinct” (Martinez: 503 [A381]). At approximately 4:00 a.m., defendant called his sister, YVETTE VASQUEZ, and told her that he had been arrested (Vasquez: 453-55 [A331]).6 Vasquez was an 6 Defendant’s friends and family members, including Vasquez and Martinez, had driven the car (Vasquez: 458, 461 [A336, 339]; Martinez: 503 [A381]). Defendant’s uncle (Continued…) -21- MTA police officer, and defendant asked her to “come down to the precinct to retrieve his property” (Vasquez: 454-55 [A332-33]). Vasquez arrived at the precinct about 20 minutes later, and she told the desk sergeant that she was a police officer and defendant’s sister (Vasquez: 455, 467-68 [A333, 345-46]). The desk sergeant allowed Vasquez to speak with defendant (Vasquez: 467-68 [A345-46]). Vasquez also spoke to Officer Lanzisero and they realized that they had graduated from the police academy in the same class (Vasquez: 456 [A334]). Lanzisero released defendant’s wallet and cellphone to Vasquez, and Vasquez signed Lanzisero’s memo book to acknowledge her receipt of defendant’s property (Vasquez: 456, 458, 469, 471 [A334, 336, 347, 349]). Lanzisero asked Vasquez if she “wanted to take [defendant’s] property that was within [defendant’s] vehicle” (Vasquez: 456-57 [A334-35]). Vasquez said that she did, and Lanzisero retrieved two clear garbage bags from the precinct (Vasquez: 457 [A335]). Vasquez and Lanzisero retrieved various items from the car and put them into the plastic bags (Vasquez: 457 [A335]). Those items included baseball bats, cleats, and a child’s “booster seat” (Vasquez: 457 [A335]). There were also “two speakers and one subwoofer” in the trunk of defendant’s car, which had been “installed after [defendant] bought the vehicle” from an “official Lexus dealership” (Vasquez: 472 [A350]). Vasquez locked the door, ______________________ (…Continued) THOMAS SBORDONE, a retired police officer, also drove defendant’s car in 2008 (Sbordone: 587-590 [A399-402]). -22- carried defendant’s belongings to her car, and left the precinct (Vasquez: 457-58 [A335-36]). In June 2008, Assistant District Attorney JOSHUA STEINGLASS was assigned to handle the prosecution of defendant’s case (Steinglass: 537 [RA72]). Approximately one month later, he interviewed Officer Cercel (Steinglass: 540 [RA75]). A sentence in Steinglass’s notes from that interview stated that “defendant [was] out of car when we got there” (Steinglass: 541-42 [RA76-77]). Steinglass recalled that Cercel spoke with an accent and, later in the interview, Steinglass realized that either Cercel had “misspoke,” or Steinglass had “misheard him” (Steinglass: 554- 55 [RA89-90]). Steinglass realized that Cercel was trying to explain that defendant was inside the car when the officers arrived, and that he stepped out of the vehicle “without prompting” from the police (Steinglass: 555-57 [RA90-92]). POINT I THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS THE GUN (Answering Defendant’s Brief, Point I). Defendant claims that the hearing court erred in denying his motion to suppress the gun recovered from his car. Initially, he argues that the police were not permitted to impound his car after they arrested him for driving while intoxicated (Defendant’s Brief at 26). In addition, defendant insists that the inventory search was a pretext, and that Officer Lanzisero actually searched defendant’s car to look for -23- contraband (Defendant’s Brief at 29-30). Defendant further complains that the search did not constitute a proper inventory search on the grounds that Lanzisero supposedly failed to prepare a meaningful inventory list of the items removed from defendant’s car, that the police turned over some property to his sister, and that Lanzisero lacked the “expertise” to determine that the speakers in defendant’s trunk were not factory issue and, thus, improperly removed them (Defendant’s Brief at 29- 32). To begin, as the Appellate Division correctly held, defendant failed to preserve his argument that the police were not permitted to impound his car following his arrest for drunk driving. At the suppression hearing, defendant never argued, as he does on appeal, that the police should have turned over the car to his girlfriend, rather than seize it for the police impound, or otherwise protested the car’s impoundment. To the extent that, in its written decision, the court observed that the car had been properly impounded (RA12), that conclusion was not made “in re[s]ponse to a protest by a party[.]” C.P.L. § 470.05(2). In short, because defendant failed to advance this argument to the hearing court, he has failed to preserve it for this Court’s review. See C.P.L. §§ 470.05(2), 470.35(1). Moreover, defendant never complained that Officer Lanzisero lacked the expertise to determine whether the speakers in the trunk were factory issue, or otherwise disputed Lanzisero’s testimony that police procedure -24- required their removal. Accordingly, that aspect of defendant’s arguments is unpreserved as well. See id.7 In any event, defendant’s claims are without merit. There are a number of circumstances under which the police may impound a car incident to arrest. Foremost, it is beyond cavil that, when police officers are lawfully in a location, they may seize property in plain view that the officers have probable cause to believe is evidence or instrumentality of a crime. See Coolidge v. New Hampshire, 403 U.S. 443, 464-65 (1971); People v. Spinelli, 35 N.Y.2d 77, 80-82 (1974); Muldoon, Gary, Handling a Criminal Case in New York, § 9:82 (2012). Moreover, the police may also impound cars for administrative purposes, such as to safeguard the vehicle. See Colorado v. Bertine, 479 U.S. 367, 374-75(1987). Indeed, it has been recognized as “standard police procedure” to impound an arrestee’s car if there is no one to take possession of the vehicle. People v. Grear, 232 A.D.2d 578, 579 (2d Dept. 1996); see United States v. Scott, 223 Fed.Appx. 80, 81-82 (2d Cir. 2007)(following arrest of driver for reckless endangerment, “police were permitted to impound the vehicle and conduct and inventory search”); see also Colorado v. 7 Following the hearing, defendant argued that Officer Lanzisero had testified that he had been “looking for traps” in defendant’s car and, thus, that Lanzisero’s search had really been “about guns and about drugs” (A152-53, 167-68). While defendant made reference to Lanzisero purportedly “ripp[ing]” apart defendant’s car, defendant’s reference was specifically to his allegation that the “seats were totally ripped open” (A152-53, 158). Indeed, in response to defendant’s arguments, the court noted, “You keep saying they ripped the car apart. All I see is somebody pulling back part of the seat. That’s what you’re describing as ripping apart.” In response, defendant contended that the “plastic on the back of the seat is ripped off” (A158). -25- Bertine, 479 U.S. at 372; People v. Johnson, 1 N.Y.3d 252, 255 (1st Dept. 2003); Kamins, New York Search and Seizure § 5.05[6][a]. The police are also authorized to take custody of a vehicle that presents a traffic impediment or other danger to the public. See People v. Sullivan, 29 N.Y.2d 69 (1971); Kamins, Barry, New York Search and Seizure § 5.05[6][a] (Matthew Bender 2012). Furthermore, consistent with due process, the government may seek to divest a person of the fruits and instrumentalities of crime. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 52 (1993); County of Nassau v. Canavan, 1 N.Y.3d 134, 140 (2003). In particular, New York City’s Civil Administrative Code provides that a participant in a crime is not deemed a “lawful” claimant to property used in “furtherance of [the] crime.” N.Y.C. Code § 14-140(e)(1). Accordingly, when police officers arrest a defendant for driving while intoxicated, they are to impound the vehicle, and forfeiture proceedings may ensue. See Krimstock v. Kelly, 306 F.3d 40, 44-45 (2d Cir. 2002) (New York City Administrative Code permits seizure of “a motor vehicle following an arrest for the state-law charge of driving while intoxicated”). Following the lawful arrest of the driver of an automobile that must be impounded, the police may conduct an inventory search of the vehicle. People v. Johnson, 1 N.Y.3d at 255. The specific objectives for such a search are: to protect the owner’s property; to guard against claims of loss, theft or vandalism; and to guarantee the safety of officers detailed to drive the car. Id. at 256; People v. Galak, 80 N.Y.2d -26- 715, 718 (1993). As such, the justification for an inventory search does not rest upon probable cause, but rather is determined by the “reasonableness” of the police procedures utilized. Illinois v. Lafayette, 462 U.S. 640, 643 (1983); United States v. Chadwick, 433 U.S. 1, 20 n.5 (1977); People v. Gonzalez, 62 N.Y.2d 386, 390 (1984); see People v. Galak, 80 N.Y.2d at 719. An inventory search is reasonable where the police officers are guided by agency procedures which are “rationally designed” to meet the legitimate objectives of the search, and which limit the officer’s “discretion in the field.” People v. Galak, 80 N.Y.2d at 716-17, 720-21; see People v. Gomez, 13 N.Y.3d 6, 10-11 (2009). So long as the search is conducted according to a “single familiar standard,” it is proper. People v. Galak, 80 N.Y.2d at 716; see People v. Gomez, 13 N.Y.3d at 10. Finally, when the hearing court and Appellate Division determine that “the inventory search . . . was conducted pursuant to a standard departmental procedure” and there is “support in the record for that factual finding,” this Court is “bound” by such a finding. People v. Galak, 80 N.Y.2d at 718. Judged by this Court’s standards, the inventory search in this case was wholly reasonable. At the outset, defendant does not take issue with the hearing court’s determination that the police had probable cause to arrest defendant for operating a car while under the influence of alcohol (RA11). That is not surprising, as the initial police stop was based on defendant’s illegally parked car. Once the police activated their overhead lights, defendant stepped out of the driver’s seat of his car, and started -27- to walk away from his car. The engine in defendant’s car was still running, and defendant showed numerous signs of intoxication, including watery, bloodshot eyes, and difficulty walking straight (White: 10-11 [A14-15]). Based on these factors, the hearing court properly concluded that Officer White had probable cause to arrest defendant for operating a car while intoxicated (RA11-12). In addition, the police were entitled to impound defendant’s car following his arrest. As noted, defendant never contended otherwise below. Accordingly, the only reference at the hearing to the basis for the car’s impoundment was the People’s observation, during a thorough review of the propriety of police conduct, that it had long been policy to seize automobiles following arrest for driving while intoxicated (A160). And, thus, the hearing court properly concluded that the car had been lawfully seized as the instrumentality of a crime (RA12). Even if that were not the case, the officers’ conduct here was clearly correct. After all, defendant’s car was illegally parked in front of a fire hydrant and obstructing the flow of traffic. Therefore, the police had to remove the car from where defendant had parked it. See People v. D’Abate, 37 N.Y.2d 922, 923 (1975) (affirming conviction where police impounded illegally parked car and recovered loaded handgun pursuant to inventory search). Notably, at the time of defendant’s arrest, there were no other passengers in his car who might have been permitted to take possession of the vehicle. See Muldoon, Handling a Criminal Case in New York, § 9:82 (police may impound a car where there is “no one else available who can legally -28- drive the car”); Kamins, New York Search and Seizure § 5.05[6][a]. Further, there was no evidence introduced at the hearing to suggest that defendant or Martinez asked the police to release the car to Martinez. Indeed, Martinez testified that she was still inside the deli when the police arrived, and that she voluntarily accompanied an officer to the police precinct in defendant’s car (Martinez: 116, 130 [A120, 134]). Based on all the evidence, the hearing court properly concluded that the police lawfully impounded defendant’s car. See generally Colorado v. Bertine, 479 U.S. at 372-74. The suppression court and the Appellate Division also correctly held that Officer Lanzisero conducted a lawful inventory search of defendant’s car. As the arresting officer, Lanzisero was required to perform an inventory search of defendant’s car and remove all the non-standard equipment. Based on the credible evidence, the hearing court properly concluded that Lanzisero carried out that search according to established police procedures, which comported with due process requirements. In keeping with departmental policy, Lanzisero was required to remove the sound system that took up nearly the whole trunk and was plainly not standard- issue (Lanzisero: 60 [A64]). Finally, upon discovering the black bag next to the spare tire, Lanzisero was authorized to open the bag and recover the gun. See Florida v. Wells, 495 U.S. 1, 4 (1990); United States v. Arango-Correa, 851 F.2d 54, 59 (2d Cir. 1988); People v. Gonzalez, 62 N.Y.2d at 386. Accordingly, it is plain that Lanzisero recovered the gun by following standard police procedures for inventory searches, -29- and this Court is bound by the lower courts’ factual findings in that regard. See People v. Galak, 80 N.Y.2d at 718. Thus, defendant is forced to turn to collateral matters in his attempt to attack the hearing court’s decision. First, defendant is incorrect when he claims that Lanzisero intended “to search [defendant’s car] for contraband,” rather than to prepare an inventory list (Defendant’s Brief at 27-29). To be sure, Lanzisero acknowledged that the car’s seat panels were “askew,” and that he opened those panels with the knowledge that drugs were sometimes hidden inside that area of a vehicle (Lanzisero: 95-96 [A99-100]). However, Lanzisero was still correct to search the area. After all, the area could have also been used to secrete valuable items that were not illicit in nature. Moreover, Lanzisero’s suspicion that he might uncover evidence did not undermine the validity of the entire search. Indeed, as the hearing court noted, Lanzisero’s “motivation for that one action” of examining the seat backs did not “transform his extensive inventory search into a pretextual search for incriminating evidence” (RA14). Similarly, the Appellate Division correctly held that “there was no evidence that the search was conducted as a ruse to discover incriminating evidence.” People v. Padilla, 89 A.D.3d at 505. Regardless of what Lanzisero believed he might find in defendant’s car during his inventory search, he conducted a reasonable search in fundamental compliance with established police procedures. See People v. Edwards, 14 N.Y.3d 741, 742 (2010) (“police officers’ subjective motivation to investigate possible drug activity does not -30- negate the objective reasonableness of the officers’ actions”); see also People v. Johnson, 1 N.Y.3d at 256.8 Defendant is also wrong when he contends that Officer Lanzisero failed to follow proper procedure in conducting that search. Foremost, contrary to defendant’s assertions (Defendant’s Brief at 29-30), Lanzisero completed the “hallmark of an inventory search: a meaningful inventory list” of the items he recovered from defendant’s car. People v. Johnson, 1 N.Y.3d at 256. As the hearing court noted, Lanzisero “prepared a detailed inventory,” which “list[ed] 26 separate items” that were recovered from defendant’s car and “retained by the police department” (Decision and Order at 15 [RA15]; People’s Hearing Exhibits 2A-2C [RA19-21]). Lanzisero listed these items, which included speakers, compact discs, and an EZ pass, on the property clerk’s invoice form (People’s Hearing Exhibits 2A-2C [RA19-21]). To be sure, as the Appellate Division noted, Lanzisero did not record every item that he released to defendant’s sister. However, Lanzisero did make a list of the most “significant, noteworthy or valuable items” that he turned over to defendant’s 8 In support of his argument, defendant also alleges that the police “ripped open” the car during their search (See Defendant’s Brief at 29). But this claim is plainly contradicted by the record. Officer Lanzisero made clear that the car’s seat back panels were already “askew” before he began the inventory search (Lanzisero: 95-96 [A99-100]). Moreover, when defense counsel raised this same argument at the suppression hearing, the court pointed out that the photographs offered as evidence by the defense showed that the car had not been ripped apart. Rather, the photographs merely showed that “somebody pulled back part of the seat” (See Footnote 7, above). -31- sister—including defendant’s iPod, cellular phone, and house keys—and recorded them in his memo book (Decision and Order at 15-16 [RA15-16]; People’s Hearing Exhibits 3A-3D [RA24]). All told, Lanzisero prepared a meaningful inventory list of the items recovered from defendant’s vehicle. See United States v. Lopez, 547 F.3d 364, 371 (2d Cir. 2008) (meaningful inventory list “does not demand the separate itemization of every single object” removed from car); cf. People v. Gomez, 13 N.Y.3d 6, 11 (2009) (no “meaningful inventory list” where police paperwork “failed to establish that no other items aside from the contraband were found in defendant’s vehicle”).9 Defendant also complains that Lanzisero supposedly violated “protocols” by turning over his personal belongings to defendant’s sister (Defendant’s Brief at 30- 32). However, Lanzisero testified that it was “customary” practice throughout the police department to return a defendant’s belongings to a family member (Lanzisero: 101-02 [A105-06]). Moreover, as the hearing court recognized, if the gun were suppressed on this basis, it would “not [be] because Defendant’s rights were 9 In his memo book, Lanzisero wrote that he released the following items to defendant’s sister: “$62.75 USC, I-POD, 1 cell phone, misc. papers, 1 set of keys, black wallet” (People’s Hearing Exhibits 3A-3D [RA23-25]. On the property clerk’s invoice, Lanzisero listed the following additional items recovered from defendant’s car: one “ez- pass,” four “grey speakers,” one “large grey speaker,” one “socket wrench set in black case,” one pair of “black handled pliers,” one pair of “black handled wire cutters,” one “white amplifier,” one “grey subwoofer,” one “silver capacitor,” one “black amplifier,” six “compact discs,” four “speaker wires,” one “black leather bag,” one silver Smith and Wesson revolver, and one “cylinder” of bullet cartridges (People’s Hearing Exhibits 2A-2C [RA19-21]). -32- violated—but because he was provided with more beneficial treatment than the law allowed” (Decision and Order at 17). Plainly, Lanzisero’s attempt to accommodate defendant by allowing his sister to take some personal belongings was a common practice, which was permitted by police protocols, and presents no basis on which to suppress the gun. See generally United States v. Lopez, 547 F.3d at 370 (upholding inventory search where police witness testified that part of inventory policy was unwritten). Finally, defendant’s unpreserved complaint that Lanzisero had no “expertise” to determine that the speakers had not been installed by the manufacturer (Defendant’s Brief at 29) is also unavailing. In fact, Lanzisero recalled that the speakers nearly “filled up the entire [trunk] space,” and had been screwed into the back seats and floor of the trunk (Lanzisero: 60 [A64]). And, as noted, defendant never disputed Lanzisero’s conclusion, much less introduced any evidence to contradict Lanzisero’s straightforward testimony on the matter (Lanzisero: 60 [A64]). Thus, it is unsurprising that the court credited Lanzisero’s conclusion that the sound system was “not an original part of the automobile,” and that police procedure required removal of the speakers (Decision and Order at 15 [RA15]; Lanzisero: 60 [A64]). In sum, the hearing record fully supports the holding of the suppression court and the Appellate Division that Officer Lanzisero conducted a valid inventory search of defendant’s car. -33- POINT II THE PEOPLE PROVED ALL ELEMENTS OF DEFENDANT’S CRIME BEYOND A REASONABLE DOUBT (Answering Defendant’s Brief, Point II). Defendant stands convicted of second-degree criminal possession of a weapon. On appeal, defendant claims that the People failed to present legally sufficient evidence that he knowingly possessed the loaded gun recovered from his own car (Defendant’s Brief at 33). Defendant’s claims are without merit. A jury verdict is supported by sufficient evidence as long as “there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial . . . and as a matter of law satisfy the proof and burden requirements for every element of the crime charged.” People v. Bleakley, 69 N.Y.2d 490, 495 (1987). In determining the legal sufficiency of the evidence, this Court must view that evidence in the light most favorable to the People and give the People the benefit of every reasonable inference to be drawn there from. See, e.g., People v. Tejeda, 73 N.Y.2d 958, 960 (1989). In addition, the reviewing court must assume that the jury credited the People’s witnesses. See People v. Kennedy, 47 N.Y.2d 196, 203 (1979). Indeed, this Court has “always recognized that juries have a superior ability to ‘separate the true from the false with a degree of accuracy which, according to the theory of our law founded on the experience of many generations, cannot be attained by reviewing judges.’” See -34- People v. Romero, 7 N.Y.3d 633, 644 (2006) (citing People v. Gaimari, 176 N.Y. 84 [1903]). With those principles in mind, there is no basis upon which to upset the jury’s determination. To prove defendant’s guilt of Criminal Possession of a Weapon in the Second Degree, it was necessary to prove that defendant knowingly possessed a loaded firearm outside his home or business. Penal Law § 265.03(3); see Penal Law § 15.00(2); People v. Saunders, 85 N.Y.2d 339, 341-42 (1995). Possession can be either actual, physical possession, or constructive possession, where a defendant has “dominion and control” over the place where contraband was seized. People v. Manini, 79 N.Y.2d 561, 572-73 (1992); see Penal Law § 10.00(8); see also People v. Muhammad, 16 N.Y.3d 184, 188 (2011). In cases involving weapons found within a car, the Legislature has established a rebuttable presumption that any occupant of a car is in possession of any firearm found within that car. Penal Law § 265.15(3); People v. Lemmons, 40 N.Y.2d 505, 509-510 (1976). At trial, Officers White and Cercel testified that defendant was in the driver’s seat of his Lexus when the officers first approached in their patrol car (White: 75, 77 [A174, 176]; Cercel: 343-44). Defendant “quickly” stepped out of the driver’s side door once White flashed his patrol lights to initiate a formal stop (White: 75, 77 [A174, 176]; Cercel: 343-44). Notably, defendant was not only driving the Lexus, he was the registered owner of the car (Wong: 314, 318-320; People’s Exhibits 8 and 9). And, of course, shortly after defendant’s arrest, Officer Lanzisero recovered a loaded -35- handgun from a hard-to-access portion of the trunk. All told, the Appellate Division correctly concluded that “the evidence, even without the automobile presumption, warrant[ed] the inference that [defendant] knew there was a firearm in his car,” People v. Padilla, 89 A.D.3d at 506, and was thus in possession of that firearm. See Penal Law § 265.15(3); People v. Lemmons, 40 N.Y.2d at 510-11; see also People v. Verez, 83 N.Y.2d 921, 924 (1994). Nor was there any reason for the jury to reject the statutory presumption that defendant was in possession of the loaded gun in his trunk. To be sure, defendant’s girlfriend testified that defendant was not inside the car when the police arrived (Martinez: 495 [A373]). However, as noted, legal sufficiency review requires an appellate court to credit the People’s witnesses. See People v. Kennedy, 47 N.Y.2d at 203. In any event, it was unclear whether Martinez even saw defendant as the officers approached, since she was admittedly still inside the deli purchasing a drink when the police arrived (Martinez: 495-96 [A373-74]). Moreover, Martinez’s credibility was highly questionable, in light of her adulterous relationship with defendant and clear motivation to protect him. In short, the credible evidence showed that defendant was inside his car before the gun was recovered, and the jury wisely exercised its prerogative to discredit Martinez’s testimony to the contrary. See People v. Jackson, 65 N.Y.2d 265, 272 (1985) (conflicting witness accounts “simply create[] a credibility question for the jury”). -36- Nevertheless, defendant contends on appeal that the People’s proof was legally insufficient because the People supposedly failed to present evidence that “link[ed]” him to the gun (Defendant’s Brief at 33-37). First, defendant argues that he could not have “knowingly possessed the firearm” because the gun was found in the spare tire compartment, which was “covered by audio speakers” (Defendant’s Brief at 35). However, as noted above, once the evidence proved that defendant was inside a car with a gun hidden in the trunk, defendant was statutorily presumed to be in possession of the gun. This presumption was not rebutted by the fact that the police found that gun in the spare tire compartment, underneath a speaker system. See People v. Lemmons, 40 N.Y.2d at 509-10. Indeed, defendant was also the owner of the car, and obviously was therefore the person with the greatest access to this rarely-used area of the car. In turn, defendant was the person most likely to use the compartment to hide a valuable and dangerous weapon. Thus, the location of the gun not only failed to rebut defendant’s statutorily-presumed possession of the weapon as occupant of the car, it further demonstrated that the gun truly belonged to defendant. Next, defendant submits that his friends and family members also drove his car and could have been responsible for the gun (Defendant’s Brief at 35-36). However, regardless of who drove the car in the past, defendant was alone in his car when the gun was found. Furthermore, although three of defendant’s witnesses testified that they drove defendant’s car, none of them offered any reason to believe that they, or -37- anyone else, had hidden a gun in the spare tire compartment. In the end, the statutory presumption of possession applies regardless of the fact that other people drove defendant’s car on prior occasions. See People v. Verez, 83 N.Y.2d at 924 (presumption of possession applies, even where the facts of the case “suggest an accomplice’s ownership” of the weapon found in vehicle); People v. Lemmons, 40 N.Y.2d at 509-510 (four occupants of car possessed two firearms recovered from one occupant’s handbag). Defendant fares no better with his complaints about the lack of fingerprints or DNA linking him to the gun (Defendant’s Brief at 34-35). Of course, neither DNA nor fingerprints were required to prove that defendant possessed the gun. See generally, People v. Jardin, 88 N.Y.2d 956, 957-58 (1996) (defendant convicted although “the People did not offer any DNA evidence on their case”). In addition, none of the People’s witnesses claimed to see defendant holding the gun, or doing anything else that would have left fingerprint or DNA evidence. Thus, the absence of fingerprints and the insufficient DNA sample was neither surprising nor detrimental to the People’s claim that defendant had been alone in his car with a gun hidden inside the trunk. Finally, defendant notes that the jurors asked the court to reread portions of its final charge, and that the jurors initially believed they would be unable to reach a verdict (Defendant’s Brief at 37). However, this observation is irrelevant to legal sufficiency review, where as demonstrated above, the trial proof fully supported the -38- jury’s ultimate conclusion. In any event, the jury’s notes demonstrate no more than that the jurors took their duty seriously, and that they properly considered all of the evidence and the court’s instructions in reaching their verdict. In sum, the People proved defendant’s guilt with overwhelming evidence, and the jury’s verdict should not be disturbed. POINT III NOTHING IN THE PEOPLE’S SUMMATION OR REDIRECT EXAMINATION OF OFFICER WHITE WAS IMPROPER (Answering Defendant’s Brief, Point III). Defendant next argues that he was deprived of a fair trial by the People’s summation and redirect examination of Officer White. Primarily, defendant claims that the prosecutor “shift[ed] the burden of proof” and “misstate[d] the law” of constructive possession during his summation. Defendant’s claims are largely unpreserved and entirely without merit (Defendant’s Brief at 41-42). A. After the defense rested, the parties delivered their closing arguments. Defense counsel spent the majority of his summation alleging, both explicitly and implicitly, that the People’s witnesses had planted the gun in defendant’s car, and then lied about it during their testimony. In fact, in his opening statement, defense counsel had told the jurors that the police witnesses “lie[d]” repeatedly, and that the prosecutor was -39- only interested in “mak[ing] his case” (RA66-67). Returning to this theme in his summation, defense counsel argued that the officers were “lying” or “making [ ] up” their testimony (RA32). Additionally, he characterized Officer Lanzisero’s testimony as “garbage,” and declared that Officer Cioffi’s testimony about fingerprint identification was “the most ridiculous thing in the world” (RA32). Shifting his focus from the police officers to the District Attorney’s Office, defense counsel argued that ADA Steinglass’s testimony did not “even have the slightest ring of truth” (RA54). Defense counsel went on to portray defendant as a helpless victim in a police conspiracy. According to defense counsel, the officers arrested defendant to obtain “a nice chunk of change” in overtime pay for Officer Lanzisero (RA32-33). Later, counsel posited that the officers had targeted defendant because he was “from the Lower East Side,” and the police believed that he would “cop out” to the gun charge (RA39). Continuing to harp on his conspiracy theory, defense counsel turned his attention to Officer White. Counsel claimed that White was “afraid” to admit that he was at the scene of the arrest, and wondered what White was “hiding” (RA34). One possible explanation, counsel suggested, was that White had retrieved a “throwaway gun and br[ought] it back to the precinct” to plant in defendant’s car (RA34). Alternatively, counsel suggested that White had “disappeared” because he did not “want to be involved with what [the police] were doing to” defendant (RA34). In any event, counsel concluded that White’s testimony was “[r]idiculous” (RA34). -40- In response, the prosecutor began the People’s summation by asking the jurors to “[l]ook at the evidence” and “use [their] common sense” (A424). He said that he would explain how the People had “prove[n] their case beyond a reasonable doubt” with “the evidence” presented at trial (A425). The prosecutor then addressed the testimony of the People’s witnesses and recapped their accounts of what had happened (A426). With regard to defense counsel’s persistent attempts to characterize the People’s witnesses as liars who conspired to frame an innocent man, the prosecutor reminded the jurors that there was no evidence that the police officers had any motive to “conspire[] to frame” defendant (A426). The prosecutor asked the jurors to consider whether it would “make sense” for the police to “frame an individual” whom the “evidence shows they had nothing against, and they didn’t know” (A426- 27). The prosecutor reminded the jurors that, if the police “planted the gun on defendant,” they would be “risk[ing] their pension,” their “careers,” and even their “freedom” to frame “a person that they don’t know” (A427-28). Defendant made no objections to any of these statements. The prosecutor went on to address the defense theory that the gun belonged to someone who had borrowed defendant’s car (A432-33). The prosecutor submitted that it was not “reasonable” to believe that a person borrowed defendant’s car, “unscrew[ed]” the speakers in defendant’s trunk, “lifted up this compartment,” and “planted a gun” inside the car (A433). Drawing on the statutory presumption of -41- possession, the prosecutor told the jurors that, even if the gun was “someone else’s,” it was “in [defendant’s] car,” and defendant was “in possession of it” (A433-34). The court overruled defense counsel’s objection, and the court noted that the prosecutor was properly “asking the jury to draw a conclusion from the evidence” (A434). The prosecutor reminded the jurors that defendant was not required to present a case, and that “the People always have the burden of proof” (A436). Noting that defendant had elected to present evidence, the prosecutor implored the jurors to consider the nature of Martinez’s relationship with defendant, and how that would affect her “credibility” (A436-37). The prosecutor described the testimony of the defense witnesses as a “distraction,” and compared it to “throwing something on the wall and trying to get it to stick” (A436). Defense counsel voiced no objection, and the prosecutor reminded the jury that, unlike the police, Martinez had “every motive” to “manufacture a story” (A437). The prosecutor also addressed the charge of driving while intoxicated. He noted that it was “not in dispute that [defendant] was in front of a fire hydrant” when the police approached his car (A442). He also pointed out that the police acknowledged during their testimony that defendant’s car was stopped when they approached (A442). The prosecutor argued that the police did not fabricate their testimony by claiming that defendant’s car was in motion because the police officers were “bound by the truth” (A442). Defense counsel voiced no objection, and the prosecutor went on to summarize the rest of the People’s evidence (A442-43). -42- At the close of summation, outside the presence of the jurors, defense counsel alleged that the prosecutor had “vouched for the credibility of the police officers by telling the jury that ‘What they told you is the truth’” (Exceptions: 724 [RA57]). Counsel also complained that the prosecutor failed to state that, according to the automobile presumption, the gun must be found at the time that the defendant is “in the car” (Exceptions: 724-25 [RA57-58]). The prosecutor disagreed with defense counsel’s interpretation of the statutory presumption, and defense counsel asked the court how it planned to charge the jury on this matter (Exceptions: 725-26 [RA57-58]). The court advised defense counsel that it was planning to deliver the “boilerplate” charge, and defense counsel stated, “Then, I have no problem” (Exceptions: 725-26 [RA57-58]). Defense counsel did not move for a mistrial, and the court went on to deliver its final charge to the jury (Exceptions: 726-27 [RA58-59]). B. On appeal, defendant insists, as he did before the Appellate Division, that the prosecutor vouched for the credibility of his witnesses, shifted the burden of proof, “misstate[d] the law,” and impermissibly “denigrate[d] the defense” (Defendant’s Brief at 38-43). However, defendant’s complaints are almost completely unpreserved. First, to the extent defendant protests that several different remarks in the People’s summation and a passage in their redirect examination of Officer White jointly deprived him of a fair trial, defendant never made any claim of cumulative -43- error or constitutional deprivation, leaving those aspects of his complaints unpreserved. See People v. Harris, 98 N.Y.2d 452, 492 (2002); People v. Charleston, 56 N.Y.2d 886, 888 (1982); People v. Balls, 69 N.Y.2d 641, 642 (1986). Moreover, defendant failed to preserve most of his individual complaints about the People’s summation. For instance, defendant registered no objection to either the People’s arguments that the police witnesses had no motive to lie or that the defense arguments failed to address squarely the evidence against him (Defendant’s Brief at 41-42; People’s Summation: 689-690, 698, 704 [A427-28, 442, 436]). See People v. Tonge, 93 N.Y.2d 838, 839-840 (1999). Furthermore, although defendant objected to the People’s discussion of the statutory presumption, he did so on a different ground than he raises on appeal. At trial, defendant’s complaint was that the People had failed to inform the jury that defendant had to be inside the car for the presumption to apply (Exceptions: 724-25 [RA57-58]). However, on appeal, defendant makes the quite different complaint that the People’s argument implied that defendant was guilty even if he was unaware of the gun (Defendant’s Brief at 42-43). Accordingly, defendant’s current complaint is unpreserved. See People v. Kello, 96 N.Y.2d 740, 743-44 (2001). And, even if defendant’s trial complaint could somehow be stretched to encompass his current argument, when the trial court stated that it intended to deliver the standard charge concerning the statutory presumption, defense counsel stated that he had “no problem” (Exceptions: 725-26 [RA58-59]). Thus, having failed -44- to seek further remedy below, defendant has failed to preserve his present claims on appeal. See People v. Santiago, 52 N.Y.2d 865 (1981). In the end, the only objection defendant made below related to his current complaints was that the People “vouched” for police witnesses by supposedly telling the jury, “‘What they told you is the truth’” (Exceptions: 724 [RA57]). Perhaps defendant was referring to the People’s contention that the officers were “bound by the truth,” although even that is not entirely clear since defendant failed to raise any contemporaneous objection to the People’s statement. And, defendant’s protest was certainly not sufficient to preserve any broader complaint about the People’s summation. See People v. Balls, 69 N.Y.2d at 642. C. In any event, defendant’s claims are without merit. It is well recognized that prosecutors are entitled to be effective advocates and, as such, the law permits them broad latitude in formulating their summation arguments. People v. Halm, 81 N.Y.2d 819, 821 (1993); People v. Galloway, 54 N.Y.2d 396, 401 (1981). This latitude warrants the prosecutor’s discussion of defendant’s arguments on summation. See People v. Halm, 81 N.Y.2d at 821; People v. Galloway, 54 N.Y.2d at 401. As a result, statements that might otherwise appear improper will not require reversal because of their context. Id. More specifically, when defense counsel has raised theories in his summation that are unsupported by the evidence, the prosecutor is allowed to point that out. See -45- People v. Seit, 86 N.Y.2d 92, 99 (1995) (prosecutor entitled to point out defense theories that are not “supported by the evidence”); People v. Smith, 82 N.Y.2d 731 (1993) (prosecutor entitled to point out “absence of credible testimony” to support defense theory). In the end, even if certain summation statements by the prosecutor are found to be technically improper, such missteps do not normally require reversal. Rather, the drastic remedy of reversal is not warranted unless a defendant was substantially prejudiced by repeated or egregious misconduct which deprived the defendant of a fair trial. See People v. Safian, 46 N.Y.2d 181, 190 (1978) (reversal not required where prosecutor’s erroneous statement of law was “isolated” and did not “pervade[] the summation”). Here, defense counsel spent the bulk of his summation arguing that the police officers and the District Attorney’s Office had framed defendant for a crime he did not commit. He characterized the testimony of the People’s witnesses as “ridiculous,” and “garbage,” and explicitly speculated that they were “lying” to the jurors (Defense Summation: 658, 668-69 [RA32, 42-43]). Defense counsel went on to suggest that the police were motivated to arrest defendant as a way to provide Officer Lanzisero with overtime pay, and that they had targeted defendant because he was from the Lower East Side (Defense Summation: 658-59, 665-66 [RA32-33, 39-40]). In the face of all that, the prosecutor merely emphasized that defense counsel’s argument was speculative, and that there was no evidence that suggested that the People’s witnesses had a motive to lie (A427-436). Particularly in light of defense -46- counsel’s summation, the prosecutor was entitled to point out the lack of evidence to support defendant’s attack on the credibility of the People’s witnesses. Specifically, defense counsel argued that the police had conspired to frame defendant and lied to the jury. In response, the prosecutor countered generally that the police had no motive to lie (A426-27). More particularly, the prosecutor pointed out that, if the police witnesses had conspired to frame defendant, they surely could have manufactured even more damning testimony, such as claiming that they had seen defendant actually driving his Lexus while intoxicated. Instead, the officers had testified that the car was parked but idling, demonstrating that they were “bound by the truth” (A442). Moreover, the prosecutor’s remarks about the consequences the police officers would face if they perjured themselves—including losing “their pension” or “their freedom”—were proper responses to defendant’s general attacks on the police witnesses’ credibility, and in particular his contention that the police had a pecuniary motive to arrest defendant in order to receive overtime pay (See Defendant’s Brief at 41; White: 128-29 [A227-28]; People’s Summation: 689-690 [A427-28]). See People v. Henderson, 13 N.Y.3d 844, 847 (2009) (prosecutor’s summation was “fair response to defense counsel’s closing argument,” which attacked the credibility of People’s witness). The prosecutor was also entitled to comment on the weaknesses in defendant’s theory of the case. The prosecutor implored the jurors to focus on the credible -47- evidence, and argued that such evidence proved defendant’s guilt beyond a reasonable doubt. In contrast to the straightforward testimony of the People’s witnesses, the prosecutor characterized the defense witnesses as a “distraction,” which counsel was “hoping would stick” (Defendant’s Brief at 42; People’s Summation: 698). It was entirely proper for the People to point out that the testimony of Martinez and Vasquez was introduced to challenge the integrity and competence of the investigating officers, but said nothing directly about how the gun ended up in defendant’s trunk. Similarly, at best, testimony that others had driven the car vaguely suggested an opportunity for someone else to have secreted the gun without identifying whom that might have been or seriously refuting the obvious conclusion that the car’s owner had hidden the weapon. See People v. Galloway, 54 N.Y.2d at 399 (prosecutor’s characterization of defense theory as a “smokescreen” and “a red herring” did not “exceed the broad bounds of rhetorical comment permissible in closing argument”). Defendant also complains that the prosecutor’s description of the statutory presumption constituted reversible error, because the prosecutor “omitted the critical element of knowledge” (Defendant’s Brief at 42-43; People’s Summation: 695-96 [A433-34]). But, defendant’s argument is completely belied by the record. In fact, far from ignoring the fact that defendant’s possession of the gun had to be “knowing,” the prosecutor repeatedly asserted that defendant “must have known about the gun” hidden inside his own car (A433-434). Indeed, when defendant objected to this portion of the prosecutor’s summation, the court overruled the objection and noted -48- that the prosecutor was properly “asking the jury to draw a conclusion from the evidence” (A434). As the court surely understood, the People were not remotely suggesting that defendant was guilty of weapon possession even if he possessed the gun unwittingly, but noting that, even if the gun was owned by someone else, defendant was surely aware of the gun secreted in his trunk. In any event, the court made clear that it would instruct the jury on the law, and its final charge both repeatedly stated that defendant’s possession of the gun had to be “knowing[ ]” included a complete explanation of the statutory presumption, which surely cured any potential confusion for the jurors (Exceptions: 727 [RA60], Court’s Charge: 738-41 [RA61-63]). Finally, the People’s redirect examination of Officer White did not constitute impermissible “bolstering,” or make the prosecutor an unsworn witness (See Defendant’s Brief at 40-41). Of course, a prosecutor may not lend his personal credibility or the credibility of the District Attorney’s Office to a witness’s testimony. People v. Moye, 12 N.Y.3d 743, 744 (2009); People v. Lovello, 1 N.Y.2d 436, 436 (1956). However, as noted, the People are entitled to respond vigorously to attacks on the credibility of their witnesses. Cf. People v. Henderson, 13 N.Y.3d at 847. During cross examination, defense counsel attempted to portray Officer White as, at best, an unreliable witness, and at worst, an outright liar. Thus, counsel began by eliciting that White had testified previously in the case. Counsel continued on to ask if the “district attorney g[a]ve you every single word that you had said for [him] to -49- go over” and if, as a result, the People’s questions on direct examination “came as no surprise” (White: 87-88 [A186-87]). Counsel then brought out that White’s memo book contained no entries about defendant’s arrest, although White had, in counsel’s term, “allegedly” witnessed a crime (White: 91-92 [A190-91]). In his opening, counsel had submitted that photographic evidence would refute White’s prospective testimony that defendant’s Lexus was blocking traffic (Opening: 53 [RA65]). Then, counsel cross-examined White with what was apparently a “blurry,” “black and white” cellphone photograph that did not show the entire vehicle, and which White was not even sure was taken on the evening of defendant’s arrest (Opening: 53 [RA65]; White: 98-101 [A197-200]). Turning to White’s testimony on direct examination that defendant had grown belligerent when officers attempted to handcuff him (White: 78-79 [A177-78]), counsel questioned White about why defendant was not charged with resisting arrest, even after White explained that he had had no responsibility in deciding what offenses defendant was to be charged with (White: 110-12 [A209-211]). And, despite the fact that defendant had not been charged with resisting arrest, counsel elicited that White had signed a supporting deposition under penalty of perjury which did not mention defendant acting belligerently (White: 126 [A225]).10 10 Other topics of cross-examination included Officer White’s inability to recall precisely what obscenities defendant had yelled at the officers or what the pedestrians might have been yelling while White and other officers struggled to subdue defendant (White: 92- (Continued…) -50- In short, during cross-examination, counsel had raised the issue of White’s trial preparation and had further squarely suggested that White was perjuring himself. The People were entitled to explore these issues on redirect examination. Accordingly, the prosecutor elicited testimony that White had been instructed only to “Tell the truth,” and he asked White about the repercussions a police officer would face if he perjured himself (White: 128 [A227]). And, in fact, White’s testimony that the District Attorney’s Office would be responsible for prosecuting any perjury charges brought against him drew no objection from defendant (White: 129 [A228]). Plainly, the prosecutor was entitled to respond to defense counsel’s attack on his witness’s truthfulness by clarifying White’s motives to tell the truth. See People v. Ochoa, 14 N.Y.3d 180, 186-87 (2010) (prosecutor’s redirect examination properly “sought to clarify” matters raised during defense’s cross examination). ______________________ (…Continued) 93 [A191-92]). Notably, counsel made clear that he did not credit White’s testimony that he simply did not recall such details. For instance, when White testified that he could not remember what members of the public shouted, counsel sarcastically asked if White was “deaf”(White: 93-94, 109 [A192-93, 208]). Moments later, counsel asked, “So you told us that your hearing is okay . . . [h]ow is your eyesight?” (White: 109 [A208]). Counsel also mocked White’s testimony that Officer Cercel had been in his “general vicinity” by asking whether Cercel was “near the Williamsburg Bridge” – a comment that prompted an objection from the People, which the court sustained as “argumentative” (White: 118-19 [A217-18]). When counsel asked if it was true that Officer Cercel “never” wrote tickets for blocking the sidewalk or parking in front of a hydrant, and White asked if counsel meant “[o]n that night,” counsel snapped, “What night did you think I was talking about?” and the court sustained another objection from the People (White: 122-23 [A221-22]). -51- In the end, even if any of the prosecutor’s remarks or questions had been improper, any error would certainly have been harmless. See People v. Morgan, 66 N.Y.2d 255, 256, cert. denied, 476 U.S. 1120 (1986). As described supra, Point II, the evidence against defendant was conclusive. Thus, there is no significant probability that, but for the challenged remarks in the People’s summation and one brief passage of the People’s redirect examination of Officer White, the jury would have acquitted defendant. See People v. Crimmins, 36 N.Y.2d 230, 241-42 (1975); People v. Safian, 46 N.Y.2d at 190. * * * In sum, defendant’s claims that he was deprived of a fair trial by the prosecutor’s summation comments are largely unpreserved and entirely meritless. -52- CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov BY: MATTHEW T. MURPHY Assistant District Attorney Of Counsel CHRISTOPHER P. MARINELLI MATTHEW T. MURPHY Assistant District Attorneys Of Counsel November 13, 2012