Opinion
2014-02-13
The PEOPLE, etc., respondent, v. Keyon ALLEYNE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Claibourne Henry of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. 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 and unlawful 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 Detective Timothy Ellis and Janel Parande, who were not witnesses to the crime in question, to testify that, in their opinions, the person depicted in a surveillance video was the defendant is unpreserved for appellate review ( see CPL 470.05[2]; People v. Ray, 100 A.D.3d 933, 933, 954 N.Y.S.2d 199; People v. Serrano, 74 A.D.3d 1104, 1106, 904 N.Y.S.2d 711; People v. Kelly, 67 A.D.3d 706, 707, 886 N.Y.S.2d 899) and, in any event, is without merit ( see People v. Ruiz, 7 A.D.3d 737, 737, 777 N.Y.S.2d 193; People v. Magin, 1 A.D.3d 1024, 1025, 767 N.Y.S.2d 366, People v. Rivera, 259 A.D.2d 316, 316–317, 684 N.Y.S.2d 787). Although the Supreme Court failed to give the appropriate limiting instruction concerning the testimony, any error in that regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant's contention that the Supreme Court erred in permitting testimony by Ellis that improperly bolstered the complainant's testimony identifying the defendant as one of his assailants and constituted impermissible hearsay is unpreserved for appellate review ( see CPL 470.05 [2]; People v. Austin, 100 A.D.3d 1010, 1010, 954 N.Y.S.2d 480). In any event, the contention is without merit ( see People v. Lassiter, 74 A.D.3d 1094, 1094, 902 N.Y.S.2d 396; People v. Smalls, 293 A.D.2d 500, 501, 739 N.Y.S.2d 630; People v. Williams, 216 A.D.2d 211, 211, 629 N.Y.S.2d 230). Also unpreserved for appellate review are the defendant's contentions that the Supreme Court erred in permitting testimony by Ellis regarding a second assailant that improperly bolstered the complainant's testimony identifying the defendant, and constituted impermissible hearsay, and that the Supreme Court erred in permitting Parande's testimony identifying the second assailant. In any event, these contentions are without merit.
As the defendant correctly argues, the prosecutor improperly suggested in his summation that Parande's identification of the second assailant enhanced the complainant's identification of the defendant ( see People v. Fleming, 76 A.D.3d 582, 583, 907 N.Y.S.2d 253). However, the error was harmless under the circumstances of this case ( see People v. Ramirez, 175 A.D.2d 849, 849, 573 N.Y.S.2d 319).
“The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions” (People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698; see U.S. Const. Sixth Amend; N.Y. Const., art. I, § 6; People v. Fields, 109 A.D.3d 553, 554, 970 N.Y.S.2d 469). Here, the defendant was not deprived of the effective assistance of counsel under the New York Constitution because, viewing defense counsel's performance in totality, counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Fields, 109 A.D.3d at 554, 970 N.Y.S.2d 469). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
The defendant's contention that the prosecutor made improper comments during summation is unpreserved for appellate review, as he failed to object to any of the challenged comments ( see CPL 470.05[2]; People v. Amico, 78 A.D.3d 1190, 1191, 913 N.Y.S.2d 675). In any event, any error was harmless because the evidence of the defendant's guilt was overwhelming, and there was no significant probability that the error contributed to the defendant's convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Smith, 36 A.D.3d 836, 837, 829 N.Y.S.2d 157).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). MASTRO, J.P., AUSTIN, SGROI and MILLER, JJ., concur.