PEOPLE v. WILLIAMS

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The PEOPLE of the State of New York, Respondent, v. Jamal WILLIAMS, Defendant–Appellant.

Decided: October 09, 2012

SAXE, J.P., SWEENY, RICHTER, ABDUS–SALAAM, ROMÁN, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

Judgment, Supreme Court, New York County (Cassandra Mullen, J.), rendered January 20, 2011, as amended February 10, 2011, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 6 years, unanimously affirmed.

The court properly denied defendant's suppression motion. The prompt showup near the scene of the crime was not conducted in an unduly suggestive manner (see e.g. People v. Gatling, 38 A.D.3d 239, 240, 831 N.Y.S.2d 157 [1st Dept.2007], lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ). Defendant did not preserve his current challenge to an officer's remark at the showup, and we decline to review it in the interest of justice. As an alternative holding, we find that the officer's statement simply cautioned the victim against making an identification unless he was certain. This did not render the identification suggestive (see People v. Guitierres, 82 A.D.3d 1116, 1117–1118, 919 N.Y.S.2d 211 [2d Dept.2011] ). Instead, it tended to reduce the risk of misidentification.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Moreover, the evidence was overwhelming. Regardless of any weaknesses in the victim's testimony, defendant's guilt was established by extensive circumstantial evidence.

By failing to object, by making belated objections (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ), or by failing to request any specific further relief after the court delivered a curative instruction (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994]; People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276 [1981] ), defendant failed to preserve his present challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept.1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

We have considered and rejected defendant's ineffective assistance of counsel claim (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).