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

232/15
KA 11-01614
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMELL R. MCCULLOUGH, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered November 3, 2010. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree, robbery in the first degree and attempted robbery in the first
degree. The judgment was reversed by order of this Court entered
March 27, 2015 in a memorandum decision (126 AD3d 1452), and the
People on May 21, 2015 were granted leave to appeal to the Court of
Appeals from the order of this Court (25 NY3d 1079), and the Court of
Appeals on June 28, 2016 reversed the order and remitted the case to
this Court for consideration of the facts and issues raised but not
determined on the appeal to this Court (___ NY3d ___ [June 28, 2016]).

     Now, upon remittitur from the Court of Appeals and having
considered the issues raised but not determined on the appeal to this
Court,

     It is hereby ORDERED that, upon remittitur from the Court of
Appeals, the judgment so appealed from is unanimously affirmed.

     Memorandum: This case is before us upon remittitur from the
Court of Appeals (People v McCullough, ___ NY3d ___, ___ [June 28,
2016], revg 126 AD3d 1452). We previously reversed the judgment
convicting defendant upon a jury verdict of, inter alia, murder in the
second degree (Penal Law § 125.25 [3]) and robbery in the first degree
(§ 160.15 [4]), holding that Supreme Court abused its discretion in
precluding defendant from presenting expert testimony on the
reliability of eyewitness identifications. The Court of Appeals
reversed our order and held that the trial court did not abuse its
discretion as a matter of law when it precluded the introduction of
such expert testimony, and the Court remitted the matter to us for
consideration of the facts and issues raised but not determined on the
appeal (McCullough, ___ NY3d at ___). We now affirm.
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                                                         KA 11-01614

     Defendant failed to preserve for our review his remaining
contention that the trial court’s ruling concerning the expert
testimony in question violated his constitutional rights (see People v
Lane, 7 NY3d 888, 889; People v Chisolm, 57 AD3d 223, 224, lv denied
12 NY3d 782), and we decline to exercise our power to address that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).




Entered:   July 8, 2016                        Frances E. Cafarell
                                               Clerk of the Court
