People v. Lee ( 1999 )

—Judgment, Supreme Court, New York County (Budd Goodman, J., at hearing; Frederic Berman, J., at jury trial and sentence), rendered August 12, 1997, convicting defendant of robbery in the first degree, and sentencing him to a term of 4 to 12 years, unanimously affirmed.

The record fails to support defendant’s contention that the court relied on an improper standard in denying his application to call an expert witness on the reliability of identification testimony. We find that the court properly exercised its discretion in precluding such testimony.

Defendant’s suppression motion was properly denied. We have reviewed the photo array and find that the persons depicted were similar in appearance, and that the minor differences between the appearance of defendant’s photograph itself and those of the fillers did not render the display unduly suggestive (see, People v Sawyer, 253 AD2d 501, lv denied 92 NY2d 930).

Defendant’s contentions with respect to alleged prosecutorial misconduct in summation and examination of witnesses do not warrant reversal. The challenged conduct did not deprive defendant of a fair trial in view of the court’s curative actions and the overwhelming evidence of defendant’s guilt, which included defendant’s possession of the vehicle stolen in the robbery coupled with his concededly false explanation to the police of such possession and his demonstrably false explanation thereof on the witness stand.

Although the court erred in denying defendant’s request to call the 911 operator who recorded the complainant’s initial call describing his assailant, the error was harmless (see, People v Crimmins, 36 NY2d 230). To the extent that defendant is raising constitutional claims with respect to the court’s evidentiary rulings, such claims are unpreserved (see, People v Maher, 89 NY2d 456, 462-463).

We perceive no abuse of sentencing discretion. Concur — Sullivan, J. P., Rosenberger, Tom, Mazzarelli and Wallach, JJ.