        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

628
KA 07-01252
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NICHOLAS J. MORGAN, ALSO KNOWN AS “MAN,”
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered May 24, 2006. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree, criminal possession of a weapon in the second degree, criminal
possession of a weapon in the third degree, criminal possession of a
controlled substance in the third degree, criminal possession of a
controlled substance in the fifth degree and unlawful possession of
marihuana.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, murder in the second degree (Penal
Law § 125.25 [2]). Defendant failed to preserve for our review his
contention that Supreme Court erred in intervening during the
testimony of a prosecution witness and in permitting the prosecutor to
impeach that witness (see CPL 470.05 [2]). Indeed, defendant
acquiesced in the court’s chosen course of conduct (see generally
People v Alston, 264 AD2d 685, 685-686, lv denied 94 NY2d 876).
Defendant also failed to preserve for our review his challenge to the
jury instructions inasmuch as he did not raise that challenge at trial
(see People v Knapp, 79 AD3d 1805, 1807, lv denied 17 NY3d 807, 808),
and we decline to exercise our power to review that contention and
challenge as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     We reject defendant’s further contention that he was denied
effective assistance of counsel based upon defense counsel’s failure
to cross-examine the People’s firearms examiner and certain remarks
made by defense counsel on summation. “[D]efendant failed to
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                                                        KA 07-01252

establish that there was no legitimate or strategic reason for defense
counsel’s alleged error” in declining to cross-examine the firearms
examiner (People v Roman, 60 AD3d 1416, 1418, lv denied 12 NY3d 928;
see People v Cancer, 16 AD3d 835, 840, lv denied 5 NY3d 826; People v
Philbert, 267 AD2d 607, 607-608, lv denied 94 NY2d 905). Contrary to
the contention of defendant, defense counsel did not concede on
summation that the People met their burden of proof. Rather, defense
counsel “chose in a forthright though brief statement to submit his
client to the mercy and fair-mindedness of the jury,” which does not
render him ineffective (People v Mapp, 47 NY2d 939, 940; see generally
People v Forbes, 203 AD2d 609, 611). Viewing the evidence, the law
and the circumstances of this case in totality and as of the time of
the representation, we conclude that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     Defendant further contends that the court erred in refusing to
suppress two eyewitness identifications of him because the successive
identification procedures were unduly suggestive. Even assuming,
arguendo, that defendant’s contention is preserved for our review (see
CPL 470.05 [2]), we conclude that it is without merit. It is well
settled that “[m]ultiple pretrial identification procedures are not
inherently suggestive” (People v Johnson, 52 AD3d 1286, 1286, lv
denied 11 NY3d 738; see People v Peterkin, 81 AD3d 1358, 1359, lv
denied 17 NY3d 799) and, here, “[t]here was nothing unduly suggestive
about having [the first witness in question] view defendant in a
lineup after [he] had already selected [defendant’s] photograph from
an array” (People v Ervin, 5 AD3d 316, 317, lv denied 3 NY3d 639).
With respect to the second witness in question, we likewise conclude
that showing the witness a photo array followed by a lineup was not
unduly suggestive under the circumstances of this case (see Peterkin,
81 AD3d at 1359; People v McKinley, 283 AD2d 777, 777, lv denied 97
NY2d 731; People v Carroll, 200 AD2d 630, 630, lv denied 83 NY2d 850).
“In contrast to the suspect nature of the repeated display of a
defendant’s photograph in successive arrays until a positive
identification is obtained, ‘the potential for irreparable
misidentification is not manifest when the eyewitness views an array
containing a photograph of the defendant and subsequently views the
defendant in person during a lineup’ ” (McKinley, 283 AD2d at 777; see
Carroll, 200 AD2d at 630). We further note that the photo array and
the lineup were separated by eight hours and that there are no other
circumstances indicating police suggestiveness (see generally People v
Moore, 202 AD2d 1046, 1046, lv denied 84 NY2d 830). Thus, “the record
supports the court’s determination that the photo array and subsequent
lineup ‘were not so suggestive as to create the substantial likelihood
that defendant would be misidentified’ ” (Johnson, 52 AD3d at 1286;
see McKinley, 283 AD2d at 777; Carroll, 200 AD2d at 630).

     Finally, defendant failed to preserve for our review his
contention that this case was improperly transferred from County Court
to Supreme Court for trial and sentencing (see People v Perez, 89 AD3d
1393, 1395; People v Ott, 83 AD3d 1495, 1496, lv denied 17 NY3d 808;
see also People v Woodrow, 91 AD3d 1188, 1189), and we decline to
exercise our power to review it as a matter of discretion in the
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                                                        KA 07-01252

interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant’s
contention, the alleged transfer error does not constitute a mode of
proceedings error such that preservation is not required (see Perez,
89 AD3d at 1395).




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
