People v. Linton , 864 N.Y.S.2d 431 ( 2008 )

Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered June 29, 2007, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 14 years, unanimously affirmed.

The court properly exercised its discretion in admitting negative identification evidence (see People v Wilder, 93 NY2d 352 [1999]), consisting of the victim’s inability to identify anyone from a large group of photographs. Although the photos were unavailable, there was sufficient trial testimony to establish the probative value of the victim’s failure to make an identification. In any event, any error in this regard was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Defendant did not preserve his claim that the prosecutor made an improper summation argument suggesting that defendant’s prior record showed criminal propensity, and we decline to review it in the interest of justice. As an alternative holding, we find that the comment did not deprive defendant of a fair trial, particularly since, shortly after the remarks at issue, the court gave a curative instruction that defendant’s record was a matter for the jury’s consideration in evaluating defendant’s credibility as a witness, followed by a more specific instruction, in its final charge, that the prior record was not evidence of predisposition. Accordingly, we also reject defendant’s ineffective assistance of counsel claim relating to this issue.

We perceive no basis for reducing the sentence. Concur— Lippman, EJ., Gonzalez, Sweeny, Catterson and DeGrasse, JJ.