Opinion
February 3, 1995
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Green, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was not denied effective assistance of counsel as the result of his counsel's failure to make a pretrial motion to suppress the identification testimony of the victim and the bus driver. The position of defendant at trial was to admit his presence at the scene but to deny participating in the robbery. Consequently, identification was not in issue, and defendant failed to show that counsel's decision not to move to suppress the identification testimony was not strategic (see, People v Garcia, 75 N.Y.2d 973, 974; People v. Rivera, 71 N.Y.2d 705, 709; People v. Sumpter, 185 A.D.2d 629, lv denied 81 N.Y.2d 848).
The verdict is supported by sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant failed to object to the prosecutor's summation, and thus his challenge to the propriety of several of the prosecutor's comments is not preserved for review (see, CPL 470.05).
We decline to review the issue as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). Finally, defendant's sentence is not unduly harsh or excessive.