People v. Ashley

8 A.D.3d 136, 778 N.Y.S.2d 274, 2004 N.Y. App. Div. LEXIS 8582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 2004
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Robert H. Straus, J.), rendered March 21, 2002, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 15 years, respectively, unanimously affirmed.

Although we find that the People’s use of defendant’s alibi notice was contrary to People v Burgos-Santos (98 NY2d 226, 233-235 [2002]), we find the error to be harmless in light of the overwhelming evidence of defendant’s guilt, including eyewitness testimony and circumstantial evidence (see id. at 235-236). To the extent that defendant is raising a constitutional claim, such claim is unpreserved (see id. at 235), and we decline to review it in the interest of justice. In any event, any error in the use of the alibi notice was harmless even under the constitutional standard.

The court properly allowed defense counsel to comment on the prosecutor’s failure to call particular witnesses, and properly precluded counsel from inviting unwarranted speculation (see People v Greene, 279 AD2d 436 [2001], lv denied 96 NY2d 800 [2001]).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur—Saxe, J.P., Sullivan, Williams, Friedman and Marlow, JJ.