PEOPLE v. PINCKNEY (2006)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered July 29, 2003, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 The defendant's challenges to remarks made by the prosecutor during summation are unpreserved for appellate review (see CPL 470.05[2];  People v. Antinuche, 5 A.D.3d 390, 772 N.Y.S.2d 545).   In any event, most of the remarks constituted a fair response to the defense counsel's summation in which he repeatedly challenged the credibility of the prosecution's witnesses (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Adamo, 309 A.D.2d 808, 810, 765 N.Y.S.2d 651;  People v. Elliot, 216 A.D.2d 576, 628 N.Y.S.2d 761;  People v. Lilly, 139 A.D.2d 671, 527 N.Y.S.2d 433).   The remaining remarks were not so egregious as to violate the defendant's fundamental right to a fair trial (see People v. Lawson, 275 A.D.2d 721, 713 N.Y.S.2d 690), and, in light of the overwhelming evidence of the defendant's guilt, there was no significant probability that, had the remarks not been made, the defendant would have been acquitted (see People v. Trinidad, 22 A.D.3d 612, 802 N.Y.S.2d 250).

 Contrary to the defendant's contention in his supplemental pro se brief, the lineup was not unduly suggestive, and the hearing court, therefore, properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony (see People v. Granger, 18 A.D.3d 774, 794 N.Y.S.2d 914;  People v. Richards, 2 A.D.3d 883, 769 N.Y.S.2d 738).

 Moreover, the People were not required to give prior notice of the in-court identification of the defendant by a witness who had not previously identified him out-of-court (see CPL 710.30[1][b];  People v. Rohan, 214 A.D.2d 755, 625 N.Y.S.2d 948;  People v. Trottie, 167 A.D.2d 438, 561 N.Y.S.2d 841;  People v. Dozier, 150 A.D.2d 483, 484, 541 N.Y.S.2d 224).

The defendant's remaining contentions, raised in his supplemental pro se brief, are unpreserved for appellate review and, in any event, are without merit.