People v. Odubogun

36 A.D.3d 942, 827 N.Y.S.2d 877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 2007
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered June 14, 2005, 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.

The defendant’s contentions regarding the prosecutor’s reference during his opening statement to a witness who ultimately refused to testify, and regarding the admission of testimony of a detective that, after conducting interviews at the crime scene, he suspected the defendant of committing the murder and that he arrested the defendant after a witness viewed a lineup, are unpreserved for appellate review (see People v Barboza, 24 AD3d 460, 461 [2005]; People v Boatswain, 8 AD3d 673, 674 [2004]; People v Thompson, 276 AD2d 811 [2000]).

In any event, the defendant’s claims with respect to the opening statement and the testimony about when the defendant became a suspect are without merit (see People v De Tore, 34 NY2d 199, 207 [1974], cert denied sub nom. Wedra v New York, 419 US 1025 [1974]; People v Nicholas, 1 AD3d 614 [2003]), and any error in the admission of the testimony about the arrest after the lineup was harmless (see People v Mobley, 56 NY2d 584, 585 [1982]).

The defendant was not deprived of the effective assistance of counsel. Counsel pursued a viable misidentification defense throughout the trial. Viewing the record as a whole, the defendant received meaningful representation (see People v Henry, 95 NY2d 563, 566 [2000]; People v Baldi, 54 NY2d 137, 147 [1981]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Schmidt, J.E, Crane, Skelos and Fisher, JJ., concur.