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People v. Parker2/7/2003
ontention of defendant, the court did not err in denying his motion for a mistrial based on the alleged misconduct of a prospective juror. A person who mistakenly believed that a prospective juror was actually an impaneled juror on defendant's case allegedly overheard the prospective juror describe defendant to two of the prospective juror's co-workers as "the one who killed the cop." The person who allegedly overheard the statement then used the statement in an article for a newspaper publication dated September 9, 1998, the date on which the trial commenced. On September 23, 1998, defense counsel moved for a mistrial, arguing that, based on the bias of the prospective juror, he would have exercised a challenge for cause instead of a peremptory challenge with respect to her. The court did not err in denying the motion. The court interviewed the person who wrote the article, who stood by her allegations, but the prospective juror averred that she did not make the statement and the two co-workers averred that they did not hear her make the statement. We see no reason to disturb the court's resolution of that credibility issue (see generally People v Rodriguez, 291 AD2d 317, lv granted 98 NY2d 701; People v Flagg, 237 AD2d 955, lv denied 90 NY2d 893, 895).
IV. Issues Related to Identification Testimony
Defendant contends that the court erred in denying his motion to suppress the identification testimony of the officer who had been shot in the right ankle because the officer's identification was unreliable and tainted by suggestion. The officer testified at the suppression hearing that he was not able to identify defendant right after the shooting and was able to identify defendant with only 70% certainty at a subsequent lineup. In addition, another police officer testified at the suppression hearing that he had informed the injured officer the day after the shooting that the police had found a pager belonging to someone named Parker. We conclude that any error in the admission of the officer's in-court identification of defendant is harmless beyond a reasonable doubt. There is overwhelming evidence of defendant's guilt, including the identification testimony of the two passengers in the Ford Explorer who personally knew defendant and the testimony of a witness who saw defendant running down the street seconds after the witness had heard gunshots (see People v Owens, 74 NY2d 677, 678; People v Armstrong, 288 AD2d 484, 485, lv denied 97 NY2d 701; see generally People v Crimmins, 36 NY2d 230, 237). We further conclude that the court erred in allowing the People to use classic front and side profile mugshots of defendant in a photographic array in connection with the testimony of the officer (see People v Walker, 217 AD2d 856, 857-858; People v Bond, 198 AD2d 509, 510; see also People v (*11)Malone, 173 AD2d 160, lv denied 78 NY2d 969). We conclude, however, that the error is harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt (see Owens, 74 NY2d at 678; Armstrong, 288 AD2d at 485; see also Crimmins, 36 NY2d at 237).
Defendant further contends that the court erred in allowing "resemblance testimony" from a witness for the People (see generally People v Sanders, 108 AD2d 316, 319, affd 66 NY2d 906). Defense counsel's general objection to the prosecutor's question to the witness, i.e., whether the witness saw anyone in court who resembled the person that he had seen running from the crime scene, did not preserve defendant's present contention for our review (see People v Farrell, 266 AD2d 811; People v George, 255 AD2d 881; see generally People v Clarke, 81 NY2d 777, 778). In any event, we conclude that any error in the admission of the resemblance test
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