Opinion
KA 01-01985.
Decided March 19, 2004.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered August 29, 2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MARY GOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.
RAMONE ROBINSON, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the second degree (§ 265.03 [2]). Defendant's first trial ended in a mistrial after the jury was deadlocked. Contrary to defendant's contentions, County Court properly admitted testimony concerning a pretrial photo identification "to correct a misapprehension created by the defense regarding the issue of identification" ( People v. Bailey, 257 A.D.2d 432, 433, lv denied 93 N.Y.2d 966; see People v. Williams, 286 A.D.2d 918, 920, lv denied 97 N.Y.2d 763); the verdict is not against the weight of the evidence on the issue of identification ( see People v. Bleakley, 69 N.Y.2d 490, 495); and the court properly determined that the photo array was not unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833; People v. Parker, 257 A.D.2d 693, 693-694, lv denied 93 N.Y.2d 1015, 1024). Defendant's additional contention that the People's use of testimony from the first trial was not authorized pursuant to CPL 670.10(1) is not preserved for our review ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). The sentence is not unduly harsh or severe. We have considered the contentions of defendant in his pro se supplemental brief and conclude that they are without merit.