Summary
rejecting the bolstering claim as unpreserved for appellate review
Summary of this case from Norris v. FischerOpinion
2001-10893.
Decided March 29, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered December 7, 2001, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, HOWARD MILLER WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review ( see CPL 470.05; People v. Williams, 247 A.D.2d 416 ). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see People v. Williams, 84 N.Y.2d 925, 926). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The defendant contends that the police officer's testimony regarding the lineup improperly bolstered the complainant's identification testimony ( see People v. Trowbridge, 305 N.Y. 471; People v. Holt, 67 N.Y.2d 819). However, no objection to the police officer's testimony was made and the issue is not preserved for appellate review ( see CPL 470.05). Furthermore, since the defendant elicited other information from the police officer regarding the same subject and relied on it in pursuit of his defense, any error in admitting the testimony was harmless ( see People v. Tarsia, 50 N.Y.2d 1, 8-9; People v. Vera, 183 A.D.2d 486, 487).
The defendant's constitutional challenge to his adjudication as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit ( see People v. Rosen, 96 N.Y.2d 329, 335, cert denied 534 U.S. 899; People v. Messer, 305 A.D.2d 260, 261, lv denied 100 N.Y.2d 584; People v. Lebron, 293 A.D.2d 689, 690).
RITTER, J.P., SMITH, H. MILLER and MASTRO, JJ., concur.