PEOPLE v. FRAY (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered January 23, 1996, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 The defendant contends that the admission of a photograph showing him standing next to a measuring pole was improper.   However, the defendant has failed to preserve this contention for appellate review inasmuch as no objection was ever made to the admission of the photograph (see, People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Sutton, 161 A.D.2d 612, 555 N.Y.S.2d 187).   In any event, the admission of the photograph was proper and did not unfairly bolster the witnesses' testimony.   The photograph was admitted for the purpose of showing the defendant's appearance on the date of the arrest, and it was within the province of the jury to evaluate the descriptions provided by the witnesses in relation to the defendant's actual appearance (see, People v. Logan, 25 N.Y.2d 184, 303 N.Y.S.2d 353, 250 N.E.2d 454;  People v. Larry, 178 A.D.2d 282, 577 N.Y.S.2d 605;  People v. Santana, 162 A.D.2d 191, 556 N.Y.S.2d 316).

 The defendant further contends that improper comments made by the prosecutor during summation constituted reversible error.   However, the defendant has failed to preserve this contention for appellate review inasmuch as no objections were made during summation (see, CPL 470.05[2];  People v. Goodman, 190 A.D.2d 862, 593 N.Y.S.2d 873;  People v. Ray, 155 A.D.2d 625, 547 N.Y.S.2d 675).   In any event, the defendant's argument is without merit, as the prosecutor's statements did not so prejudice the defendant as to warrant a new trial.

MEMORANDUM BY THE COURT.