PEOPLE v. JIMINEZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Ramon JIMINEZ, Defendant-Appellant.

Decided: October 27, 2005

TOM, J.P., MAZZARELLI, FRIEDMAN, CATTERSON, McGUIRE, JJ. Seijas & Levine, Bronx (Justin Levine of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Nhu P. Nguyen of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Daniel Sullivan, J.), rendered September 16, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

 The photograph of the lineup identification did not improperly bolster the complainant's in-court identification, and was properly admitted as “an effective tool for assessing the weight and credibility” of the complainant's testimony (People v. Cross, 197 A.D.2d 488, 602 N.Y.S.2d 864 [1993], lv. denied 82 N.Y.2d 923, 610 N.Y.S.2d 175, 632 N.E.2d 485 [1994] ).   Admission of the photograph was particularly appropriate here given that defendant had a distinctive tattoo under his left eye and the police arranged for all of the fillers and defendant to wear a band-aid under their left eye.   Thus, the photograph provided additional proof that the identification was not based on defendant's distinctive tattoo.   That is not to say, of course, that if the identification had been based in part on the tattoo it would have been less reliable.   Defendant's claim that the court improperly permitted the detective to testify “as to the objectivity of the lineups” is unpreserved and we decline to review it in the interest of justice (CPL 470.05[2] ).   Were we to review, we would find that the detective's testimony on the subject concerned only the procedure in setting up the lineup, not the complainant's out-of-court identification, and was therefore appropriate (see People v. Munoz, 223 A.D.2d 370, 636 N.Y.S.2d 313 [1996], lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623 [1996];  People v. Sanders, 173 A.D.2d 391, 570 N.Y.S.2d 23 [1991], lv. denied 78 N.Y.2d 1014, 575 N.Y.S.2d 822, 581 N.E.2d 1068 [1991] ).   Also unpreserved for failure to object are defendant's claims with respect to the prosecutor's comments.   Were we to review, we would find that the prosecutor's comments were largely in direct response to defense counsel's comments, had either ample or at least some support in the record and did not in any event unduly prejudice defendant (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).   Defendant's sentence is not “grossly disproportionate to the severity of the crime” (Rummel v. Estelle, 445 U.S. 263, 271-272, 100 S.Ct. 1133, 63 L.Ed.2d 382 [1980];  People v. Broadie, 37 N.Y.2d 100, 110-111, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975], cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 [1975] ), and we perceive no basis for reducing it.