Opinion
April 6, 2000.
Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered April 15, 1998, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of a weapon in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 10 years and 1 year, respectively, unanimously affirmed.
Shelly A.R. Chichester, for respondent.
Carl S. Kaplan, for defendant-appellant.
ROSENBERGER, J.P., WILLIAMS, TOM, RUBIN, BUCKLEY, JJ.
Although, in an in limine application, defendant objected to prospective testimony that he chose his own position in his lineup and that his attorney was present, defendant abandoned this issue after the court reserved decision but made no express or implied ruling (see, People v. Graves, 85 N.Y.2d 1024, 1027; People v. Rivera, 257 A.D.2d 425, lv denied 93 N.Y.2d 901). Were we to review this claim, we would find that the challenged testimony was admissible because the fairness of the lineup was in issue (People v. Foulks, 143 A.D.2d 1038, lv denied 73 N.Y.2d 855).
Defendant has failed to preserve his present challenges to comments by the prosecutor during summation (see, People v. Balls, 69 N.Y.2d 641), and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the prosecutor's summation did not deprive defendant of a fair trial (see, People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.