Opinion
March 31, 1986
Appeal from the Supreme Court, Queens County (Zelman, J.).
Judgment affirmed.
The identification testimony was properly admitted. The photographic identification procedure was not unduly suggestive and conducive to irreparable misidentification (see, People v Logan, 25 N.Y.2d 184, 187, cert denied 396 U.S. 1020; People v Veal, 106 A.D.2d 418, 419). The police had no duty to provide for the presence of the defendant's attorney at the preindictment, investigatory lineup when the defendant did not request his attorney's presence (People v. Hawkins, 55 N.Y.2d 474, 486-487, cert denied 459 U.S. 846).
Further, the defendant was not deprived of his right to a fair trial. The defendant's claim that the court failed to properly marshal the evidence is unpreserved for appellate review and, in any event, lacks merit (see, People v. Wilson, 107 A.D.2d 830). The prosecutor's comments were within the "broad bounds of rhetorical comment permissible in closing argument" (People v Galloway, 54 N.Y.2d 396, 399). Also, the trial court did not abuse its discretion in denying the defendant's motion to set aside the verdict. It is improbable that the new evidence offered by the defendant, if received at trial, would have resulted in a verdict more favorable to him (see, People v. Rivera, 108 A.D.2d 829). The court's comment bolstering the testimony of the People's fingerprint expert was rendered harmless by its subsequent instructions in the charge that the jurors were not in any way bound to accept the expert's testimony and were free to "disregard such testimony either in whole or in part" (see, People v. Winchell, 64 N.Y.2d 826). Similarly, the court's admission of Ms. Ruble's opinion testimony was, under the circumstances of this case, harmless nonconstitutional error (see, People v. Crimmins, 36 N.Y.2d 230, 242).
Finally, the sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80). Mangano, J.P., Brown, Weinstein and Spatt, JJ., concur.