Opinion
April 24, 1992
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Callahan, J.P., Boomer, Pine, Lawton and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of assault in the second degree (Penal Law § 120.05) for stabbing his neighbor following an argument. We agree with defendant's contention that Supreme Court erred in admitting testimony from two prosecution witnesses that improperly bolstered the victim's identification of defendant (see, People v Bayron, 66 N.Y.2d 77, 81; People v Trowbridge, 305 N.Y. 471; People v Love, 135 A.D.2d 1099). Defendant's attorney, however, failed to object to that testimony as improper bolstering. Thus, the issue has not been preserved for appellate review (see, CPL 470.05; People v West, 56 N.Y.2d 662, 663; People v Minigan, 175 A.D.2d 648, lv denied 78 N.Y.2d 1013). Were we to address the issue on the merits, we would conclude that the error was harmless in light of the victim's strong and unequivocal identification of the defendant, who resided downstairs (see, People v Johnson, 57 N.Y.2d 969; People v Mobley, 56 N.Y.2d 584, 585; People v Williams, 154 A.D.2d 935, lv denied 75 N.Y.2d 778). In our view, there is no significant probability that the jury would have acquitted defendant had it not been for the error (see, People v Crimmins, 36 N.Y.2d 230, 242; People v Johnson, supra, at 970). Because of defendant's extensive criminal record, the court did not abuse its discretion in the imposition of the sentence.