| People v Marshall |
| 2012 NY Slip Op 05759 [97 AD3d 840] |
| July 25, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ArvelMarshall, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, andO'Melveny & Myers LLP [Courtney Wen], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered January 5, 2010, convicting him of murder in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
On July 15, 2008, at about 9:30 p.m., Abdul Salan Zakari, Tete Eteh Benissan, AbdoulayeZibo, and the victim, Al Moustapha Oumaria, were sitting on a stoop on Albany Avenue inBrooklyn, drinking and smoking cigarettes. They were suddenly approached by a thin,dark-skinned man, dressed in a white shirt, dark jeans, and dark hat. Neither Benissan nor Zibohad ever seen the man before. The man started firing a gun. Oumaria was shot and killed.
Once the defendant became a suspect, a detective composed a photo array using the NewYork City Photo Management Database. Benissan viewed the photo array and identified thedefendant as the shooter. All three witnesses then identified the defendant in a lineup. At trial, adetective testified that he placed the defendant under arrest immediately after the three witnessesseparately viewed the lineup. The People also adduced evidence that the defendant had once goneto the victim's place of work, where they had a dispute regarding a woman with whom they hadboth been involved.
The jury found the defendant guilty of murder in the second degree. The defendant appealsfrom the judgment of conviction and we affirm.
The defendant's contention that the trial court erred in permitting the detective to testify thathe arrested the defendant immediately after the witnesses viewed the lineup is unpreserved forappellate review (see People v West, 56 NY2d 662, 663 [1982]; People v Regan, 11 AD3d 640,641 [2004]). In any event, although the testimony constituted impermissible inferential bolstering(see e.g. People v Fields, 309 AD2d 945, 945-946 [2003]), the error was harmless, asthere was overwhelming [*2]evidence of the defendant's guilt andno significant probability that the error contributed to his conviction (see People v Hall, 59 AD3d 564,565 [2009]; People v Urena, 23AD3d 587, 588 [2005]).
Contrary to the contention in the defendant's pro se supplemental brief, the hearing courtproperly denied that branch of his omnibus motion which was to suppress pretrial identificationtestimony, since neither the photo array nor the lineup was unduly suggestive (see People v Means, 35 AD3d 975[2006]; People v Kirby, 34 AD3d695 [2006]).
The defendant's further contention raised in his pro se supplemental brief that the evidencewas legally insufficient to support the verdict is unpreserved for appellate review (seeCPL 470.05 [2]; People v Hawkins,11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's remaining contentions raised in his pro se supplemental brief are withoutmerit. Angiolillo, J.P., Dickerson, Belen and Chambers, JJ., concur.