| People v Kelly |
| 2009 NY Slip Op 08036 [67 AD3d 706] |
| November 4, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Kelly, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisnerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling,J.), rendered February 2, 2007, convicting him of rape in the first degree (four counts), criminalsexual act in the first degree (seven counts), robbery in the first degree (two counts), and petitlarceny (seven counts), upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the hearing court erred in declining to conduct a Wadehearing (see United States v Wade, 388 US 218 [1967]) is unpreserved for appellatereview (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, the record of the Rodriguez hearing (see People v Rodriguez, 79 NY2d445 [1992]) supports the hearing court's determination that the witness was sufficiently familiarwith the defendant so that her photographic identification of the defendant was merelyconfirmatory (see People v Morrison,59 AD3d 569 [2009]; People vFranco, 48 AD3d 477, 478 [2008]).
The defendant contends that he was denied a fair trial when, during trial, a detectiveidentified him as an individual depicted in certain photographs derived from a surveillancevideo. That contention is unpreserved for appellate review and, in any event, any error inpermitting that testimony was harmless, as there was overwhelming evidence of the defendant'sguilt, and no significant probability that the defendant would have been acquitted absent thattestimony (see People v Haynes, 39AD3d 562, 563 [2007]; see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
To the extent that the defendant contends that he was denied the effective assistance ofcounsel, the record demonstrates that defense counsel provided meaningful representation(see People v Satterfield, 66 NY2d 796, 798-799 [1985]; People v Baldi, 54NY2d 137, 146-147 [1981]).
The defendant's contention that his adjudication and sentence as a persistent violent felonyoffender violated his constitutional rights pursuant to Apprendi v New Jersey (530 US466 [2000]) is unpreserved for appellate review and, in any event, is without merit (seeAlmendarez-Torres v United States, 523 US [*2]224, 244[1998]; Penal Law § 70.08 [1] [a]; People v Hammon, 47 AD3d 644, 645 [2008]; People v Licea, 44 AD3d 690[2007]; see also United States v Johnson, 440 F3d 832, 848 [2006], cert denied549 US 829 [2006]). Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.