| People v Moore |
| 2008 NY Slip Op 02868 [49 AD3d 901] |
| March 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Moore, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Phyllis Mintz ofcounsel; Rami A.Yomtov on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers,J.), rendered September 29, 2005, as amended October 3, 2005, convicting him of murder in thesecond degree and reckless endangerment in the first degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment, as amended, is affirmed.
The defendant shot and killed Kenyon Richardson on the basketball courts of the IngersolHousing Projects in Brooklyn. At the time of the shooting there were numerous children in thesurrounding area and a young girl was next to Richardson on the ground. The Supreme Courtsubmitted, inter alia, the charges of murder in the second degree and reckless endangerment inthe first degree to the jury. The defendant was convicted of both counts.
With regard to the lineups conducted on September 15, 2004, upon our examination of thelineup photographs, we agree with the Supreme Court that the lineups were not undulysuggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US833 [1990]).[*2]
The defendant waived his challenge on appeal to theSupreme Court's jury charge. In its charge, the Supreme Court specified that Richardson was thevictim of the crime underlying the count alleging murder in the second degree, but did notspecify a particular victim for the count alleging reckless endangerment in the first degree. ThePeople requested that the Supreme Court add to the jury charge an explanation that thecontemplated victims of the reckless endangerment count were the children nearby, and notRichardson. Defense counsel, who initially opposed submission of the reckless endangermentcount, objected to the addition of any further language with regard to that count. Accordingly, thedefendant waived his present argument on appeal that he was denied a fair trial by the SupremeCourt's failure to include the requested additional language in the jury charge (see People vWhite, 53 NY2d 721, 723 [1981]; People v Lewis, 13 AD3d 208, 213-214 [2004],affd 5 NY3d 546 [2005]; People v Maldonado, 11 AD3d 114, 116-117 [2004]).In any event, the jurors, hearing the charge as a whole, would gather from its language the correctrules to be applied (see People v Russell, 266 NY 147, 153 [1934]; People v Broxton,34 AD3d 490, 490-491 [2006]; People v Vega, 238 AD2d 278, 279 [1997];People v Rodriguez, 197 AD2d 355 [1993]).
The defendant's contention that a detective's testimony improperly bolstered theidentification testimony of two witnesses is unpreserved for appellate review, since he failed toobject to the allegedly improper testimony (see CPL 470.05 [2]; People v Sealy,35 AD3d 510 [2006]; People v Cruz, 31 AD3d 660 [2006]). In any event, anyinferential bolstering which may have occurred was harmless since the strong and positiveidentification testimony in this case precludes any significant probability that the jury would haveacquitted the defendant had it not been for the alleged error (see People v Johnson, 57NY2d 969, 970 [1982]; People v Sealy, 35 AD3d at 511; People v Anderson, 260AD2d 387, 388 [1999]; People v Stanley, 185 AD2d 827, 828-829 [1992]).
The defendant's contention that the detective's testimony violated his right to confrontwitnesses is unpreserved for appellate review, and in any event, is without merit (see People vReynolds, 46 AD3d 845 [2007]). Rivera, J.P., Skelos, Santucci and Leventhal, JJ., concur.