People v. James

Appellate Division of the Supreme Court of New York

People v. James

138 A.D.2d 744, 526 N.Y.S.2d 558, 1988 N.Y. App. Div. LEXIS 3317

Appellate Division of the Supreme Court of the State of New York·Decided March 28, 1988·Published·Cited by 13 cases

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered October 3, 1985, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Once the witness picked the defendant out of a group of mourners at the victim’s funeral, the identification was complete. The subsequent station house viewing was consistent with good police work, to ensure that the proper person was incarcerated (see, People v Morales, 37 NY2d 262, 271-272; see also, People v Brown, 124 AD2d 812, lv denied 69 NY2d 877; People v Higgs, 111 AD2d 410). Since there was no suggestive [745] police action, there is no need to determine whether the witness had an adequate independent source for the identification (see, People v Floyd, 122 AD2d 71; People v Jackson, 108 AD2d 757).

No objection was made to the alleged bolstering testimony of Detective Bostic, so the issue was not preserved for appellate review (see, CPL 470.05 [2]; People v Ray, 127 AD2d 859, lv denied 70 NY2d 654). We decline to reach the issue in the interests of justice, in view of the defense attorney’s extensive cross-examination on the issue. It appears that the permitting of the bolstering testimony was a calculated trial strategy on his part (see, People v Littlejohn, 72 AD2d 515; cf., People v Ortiz, 120 AD2d 550, lv denied 68 NY2d 671; People v Kwok Chan, 110 AD2d 158, lv denied 66 NY2d 920).

The defendant did not object when the rebuttal testimony was offered, and thus the issue was not preserved for appellate review (see, CPL 470.05 [2]). In any event, the claim is without merit because the testimony went to a material issue in the case (see, People v Pavao, 59 NY2d 282, 288; People v Wise, 46 NY2d 321, 328; cf., People v Orse, 91 AD2d 1003; People v Allen, 74 AD2d 640).

We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered October 3, 1985, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Once the witness picked the defendant out of a group of mourners at the victim’s funeral, the identification was complete. The subsequent station house viewing was consistent with good police work, to ensure that the proper person was incarcerated (see, People v Morales, 37 NY2d 262, 271-272; see also, People v Brown, 124 AD2d 812, lv denied 69 NY2d 877; People v Higgs, 111 AD2d 410). Since there was no suggestive [745] police action, there is no need to determine whether the witness had an adequate independent source for the identification (see, People v Floyd, 122 AD2d 71; People v Jackson, 108 AD2d 757).

No objection was made to the alleged bolstering testimony of Detective Bostic, so the issue was not preserved for appellate review (see, CPL 470.05 [2]; People v Ray, 127 AD2d 859, lv denied 70 NY2d 654). We decline to reach the issue in the interests of justice, in view of the defense attorney’s extensive cross-examination on the issue. It appears that the permitting of the bolstering testimony was a calculated trial strategy on his part (see, People v Littlejohn, 72 AD2d 515; cf., People v Ortiz, 120 AD2d 550, lv denied 68 NY2d 671; People v Kwok Chan, 110 AD2d 158, lv denied 66 NY2d 920).

The defendant did not object when the rebuttal testimony was offered, and thus the issue was not preserved for appellate review (see, CPL 470.05 [2]). In any event, the claim is without merit because the testimony went to a material issue in the case (see, People v Pavao, 59 NY2d 282, 288; People v Wise, 46 NY2d 321, 328; cf., People v Orse, 91 AD2d 1003; People v Allen, 74 AD2d 640).

We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur.

People v. James, 138 A.D.2d 744, 526 N.Y.S.2d 558, 1988 N.Y. App. Div. LEXIS 3317 (N.Y. Ct. App. 1988).

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