| People v Alleyne |
| 2014 NY Slip Op 01014 [114 AD3d 804] |
| February 13, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Keyon Alleyne, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, MorganJ. Dennehy, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered August 3, 2011, convicting him of robbery in the first degree andunlawful possession of marijuana, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court improperly permitted DetectiveTimothy Ellis and Janel Parande, who were not witnesses to the crime in question, totestify that, in their opinions, the person depicted in a surveillance video was thedefendant is unpreserved for appellate review (see CPL 470.05 [2]; People v Ray, 100 AD3d933, 933 [2012]; People vSerrano, 74 AD3d 1104, 1106 [2010]; People v Kelly, 67 AD3d 706, 707 [2009]) and, in anyevent, is without merit (seePeople v Ruiz, 7 AD3d 737, 737 [2004]; People v Magin, 1 AD3d 1024, 1025, People vRivera, 259 AD2d 316, 316-317 [1999] [2003]). Although the Supreme Court failedto give the appropriate limiting instruction concerning the testimony, any error in thatregard was harmless, as there was overwhelming evidence of the defendant's guilt, andno significant probability that the error contributed to the defendant's convictions (seePeople v Crimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's contention that the Supreme Court erred in permitting testimony byEllis that improperly bolstered the complainant's testimony identifying the defendant asone of his assailants and constituted impermissible hearsay is unpreserved for appellatereview (see CPL 470.05 [2]; People v Austin, 100 AD3d 1010, 1010 [2012]). In anyevent, the contention is without merit (see People v Lassiter, 74 AD3d 1094, 1094 [2010];People v Smalls, 293 AD2d 500, 501 [2002]; People v Williams, 216AD2d 211, 211 [1995]). Also unpreserved for appellate review are the defendant'scontentions that the Supreme Court erred in permitting testimony by Ellis regarding asecond assailant that improperly bolstered the complainant's testimony identifying thedefendant, and constituted impermissible hearsay, and that the Supreme Court erred inpermitting Parande's testimony identifying the second assailant. In any event, thesecontentions are without merit.
As the defendant correctly argues, the prosecutor improperly suggested in hissummation that Parande's identification of the second assailant enhanced thecomplainant's [*2]identification of the defendant (see People v Fleming, 76AD3d 582, 583 [2010]). However, the error was harmless under the circumstancesof this case (see People v Ramirez, 175 AD2d 849, 849 [1991]).
"The right to effective assistance of counsel is guaranteed by the Federal and StateConstitutions" (People v Rivera, 71 NY2d 705, 708 [1988]; see USConst Sixth Amend; NY Const, art I, § 6; People v Fields, 109 AD3d 553, 554 [2013]). Here, thedefendant was not deprived of the effective assistance of counsel under the New YorkConstitution because, viewing defense counsel's performance in totality, counselprovided meaningful representation (see People v Benevento, 91 NY2d 708, 712[1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Fields, 109AD3d at 554). Further, the defendant was not deprived of the effective assistance ofcounsel under the United States Constitution (see Strickland v Washington, 466US 668 [1984]).
The defendant's contention that the prosecutor made improper comments duringsummation is unpreserved for appellate review, as he failed to object to any of thechallenged comments (see CPL 470.05 [2]; People v Amico, 78 AD3d 1190, 1191 [2010]). In anyevent, any error was harmless because the evidence of the defendant's guilt wasoverwhelming, and there was no significant probability that the error contributed to thedefendant's convictions (see People v Crimmins, 36 NY2d 230, 241-242 [1975];People v Smith, 36 AD3d836, 837 [2007]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Austin, Sgroi and Miller, JJ., concur.