| People v Melendez |
| 2008 NY Slip Op 04887 [51 AD3d 1040] |
| May 27, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseMelendez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.),rendered January 5, 2006, as amended April 7, 2006, convicting him of murder in the seconddegree (two counts) and arson in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment, as amended, is affirmed.
A fire in a three-story building claimed the lives of two residents of a top-floor apartment,and caused serious injury to a third. The fire was determined to have been nonaccidental. Twowitnesses saw a man entering and leaving the building shortly before the fire started. Both of thewitnesses identified the defendant in court as that man. On cross-examination, defense counselconfronted one of those witnesses with his earlier testimony before the grand jury, that he had notseen the face of the man exiting the building and had not recognized him. On redirectexamination, the prosecutor was permitted, over defense objection, to read the rest of thiswitness' grand jury testimony, in which he stated that he had seen the face of this man andrecognized him as the defendant. The trial court properly allowed the prosecutor to elicit thewitness' prior consistent statement on redirect examination for the purpose of explaining andclarifying his testimony (see People v Williams, 43 AD3d 414 [2007]).
The defendant's contention that a detective's testimony improperly bolstered a prioridentification of the defendant at a lineup 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, [*2]510-511 [2006]; People v Anderson,260 AD2d 387, 388 [1999]; People v Lucas, 193 AD2d 700 [1993]). In any event,under the circumstances, any inferential bolstering which may have occurred was harmless(see People v Mobley, 56 NY2d 584, 585 [1982]; People v Sealy, 35 AD3d at511; People v Anderson, 260 AD2d at 388; People v Lucas, 193 AD2d at 700).
The jury charge, as a whole, correctly explained the concept of reasonable doubt to the jury(see People v Jones, 27 NY2d 222, 226-227 [1970]; People v Sanchez, 29 AD3d608 [2006]). Santucci, J.P., Covello, Belen and Chambers, JJ., concur.