Opinion
May 19, 1986
Appeal from the Supreme Court, Kings County (Rigler, J.).
Judgment affirmed.
Although the testimony by Detective Houlihan concerning witness Dehaven Milian's prior identification of the defendant was improper bolstering (see, People v Trowbridge, 305 N.Y. 471), the error of law was not properly preserved for appellate review. Defense counsel's belated motion for a mistrial made after the trial court struck the testimony in question from the record and gave the jury curative instructions and after two additional witnesses, one of whom was the defendant's witness, had testified, was not timely made as required by CPL 470.05 (2) (see, People v Narayan, 54 N.Y.2d 106 112). In any event, had the issue been preserved, the clear and strong identification by two witnesses of the defendant as the gunman involved in the robbery, coupled with the lack of any significant probability that the jury would have acquitted the defendant in the absence of the improper testimony, would impel us to find that the error was harmless (see, People v Bebee, 105 A.D.2d 751; see also, People v McMillian, 56 A.D.2d 662, 663).
We find that the circumstances surrounding the pretrial lineup in which the defendant participated were fair and not violative of his due process rights. The defendant himself created the conditions which caused the police to turn him around bodily, and he thus waived his right to now claim error as a result (see, People v Pilgrim, 67 A.D.2d 1011).
Finally, there was sufficient evidence for a jury to find the defendant guilty of both of the counts of grand larceny in the third degree of which he was convicted. Weinstein, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.