People v. Phillips

246 A.D.2d 403, 666 N.Y.S.2d 423, 1998 N.Y. App. Div. LEXIS 270

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1998
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered May 1, 1995, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 to 20 years, unanimously affirmed.

Since defendant did not object to any of the testimony he presently cites as “bolstering”, his claims are not preserved for appellate review and we decline to review them in the interest of justice. Were we to review these claims, we would find that defendant opened the door to the introduction of negative identification testimony (People v Melendez, 55 NY2d 445, 451; People v Wilson, 239 AD2d 264) and that the officers’ testimony regarding the complainant’s descriptions of defendant and the police use of a canvas were properly admissible (People v Huertas, 75 NY2d 487; People v Morgan, 193 AD2d 467, lv denied 81 NY2d 1077). The remaining testimony challenged as bolstering, even if erroneously admitted, was harmless in light of the overwhelming evidence of guilt (see, People v Crimmins, 36 NY2d 230).

The prosecutor’s summation comments regarding the time the defense spent discussing defendant’s alibi were stricken, and it is presumed that the jury followed the court’s instruction to disregard them. Since defendant expressed no dissatisfaction with the court’s remedy, his present claim of error is unpreserved for appellate review and we decline to review it in the interest of justice.

We perceive no abuse of sentencing discretion.

We have reviewed defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Andrias and Colabella, JJ.