Opinion
2000-02039.
Decided May 10, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered February 23, 2000, convicting him of assault in the first degree (two counts), criminal possession of a weapon in the fourth degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.
Robert DiDio, Kew Gardens, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Rona Kugler of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., NANCY E. SMITH, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that a witness for the People improperly bolstered the identification of the defendant in violation of the rule in People v. Trowbridge ( 305 N.Y. 471), is unpreserved for appellate review ( see CPL 470.05; People v. Higgins, 216 A.D.2d 487). In any event, the contention is without merit, since the defendant's identification was not a disputed issue at trial ( see People v. Johnson, 57 N.Y.2d 969; People v. Gissendanner, 48 N.Y.2d 543, 552).
The defendant's contention that a comment made by the trial court denigrated him is also unpreserved for appellate review ( see CPL 470.05; People v. Charleston, 56 N.Y.2d 886, 887; People v. Smalls, 293 A.D.2d 500). In any event, the comment was proper ( see People v. Moulton, 43 N.Y.2d 944, 945-946; People v. White, 210 A.D.2d 446, affd sub nom People v. Kelly, 88 N.Y.2d 248), and at worse, harmless.
Contrary to the defendant's contention, he was not excluded from a material stage of the trial ( see CPL 260.20; People v. Roman, 88 N.Y.2d 18, 26; People v. Velasco, 77 N.Y.2d 469, 472; People v. Gopaul, 171 A.D.2d 754, 755).
FLORIO, J.P., SMITH, CRANE and RIVERA, JJ., concur.