People v. Kelley

151 A.D.2d 1012, 544 N.Y.S.2d 519, 1989 N.Y. App. Div. LEXIS 8348

Opinion

Judgment unanimously affirmed. Memorandum: None of the issues raised by defendant in his main brief or in his supplemental pro se brief requires reversal. The photographic array was not impermissibly suggestive. The alleged improper comments made by the prosecutor on summation were not objected to and did not deprive defendant of a fair trial. Defense counsel failed to object when the court permitted the prosecution’s witness, Winfield, to testify; moreover, there is no showing that he was incompetent to testify. Defense counsel consented to the submission to the jury of a copy of a pertinent section of the Penal Law and thus did not preserve this issue for review. Lastly, we reject defendant’s contention that he was deprived of effective assistance of counsel. (Appeal from judgment of Erie County Court, Forma, J. — sodomy, first degree; sexual abuse, first degree.) Present — Doerr, J. P., Denman, Boomer, Green and Pine, JJ.