PEOPLE v. FARFAM

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

The PEOPLE, etc., respondent, v. Julio FARFAM, appellant.

Decided: November 28, 2006

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, GABRIEL M. KRAUSMAN, and REINALDO E. RIVERA, JJ. Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jill Gross-Marks, and Vered Adoni of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered March 9, 2005, convicting him of attempted burglary in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Although the trial court erred in permitting testimony concerning the defendant's arrest photograph (see People v. Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302;  People v. Griffin, 29 N.Y.2d 91, 93, 323 N.Y.S.2d 964, 272 N.E.2d 477;  People v. Caserta, 19 N.Y.2d 18, 20, 277 N.Y.S.2d 647, 224 N.E.2d 82;  People v. Irby, 162 A.D.2d 714, 714-715, 557 N.Y.S.2d 416), in view of the compelling evidence identifying the defendant as the burglar, coupled with the Supreme Court's striking of the arrest photograph and delivery of curative instructions, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Johnson, 32 N.Y.2d 814, 816, 345 N.Y.S.2d 1011, 299 N.E.2d 256;  People v. Jones, 200 A.D.2d 764, 607 N.Y.S.2d 119;  People v. Irby, 162 A.D.2d at 714-715, 557 N.Y.S.2d 416).   The trial court providently exercised its discretion in denying the defendant's application for a mistrial (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794;  People v. Diggs, 25 A.D.3d 807, 808, 807 N.Y.S.2d 579;  People v. Straker, 301 A.D.2d 667, 754 N.Y.S.2d 339;  People v. Vilsaint, 293 A.D.2d 555, 556, 741 N.Y.S.2d 249).

 The defendant contends on appeal that reversible error occurred when the trial court permitted the People to elicit testimony from a police officer concerning a post-showup arrest, which testimony improperly bolstered the complainant's prior identification of the defendant at the showup.   Although the defendant raised a general objection to this testimony, he did not object on the specific ground that it constituted improper bolstering and thus the trial court did not have an opportunity to correct the specific error and the resulting prejudice that the defendant now claims on appeal.   Under these circumstances, the defendant's claim of error is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. West, 56 N.Y.2d 662, 663, 451 N.Y.S.2d 711, 436 N.E.2d 1313;  People v. Regan, 11 A.D.3d 640, 782 N.Y.S.2d 683;  People v. Smalls, 293 A.D.2d 500, 501, 739 N.Y.S.2d 630).

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