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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TEMITOPE ODUBOGUN, Appellant.

Ordered that the judgment is affirmed.

The defendant's contentions regarding the prosecutor's reference during his opening statement to a witness who ultimately refused to testify, and regarding the admission of testimony of a detective that, after conducting interviews at the crime scene, he suspected the defendant of committing the murder and that he arrested the defendant after a witness viewed a lineup, are unpreserved for appellate review ( see People v Barboza, 24 AD3d 460, 461; People v Boatswain, 8 AD3d 673, 674; People v Thompson, 276 AD2d 811).

In any event, the defendant's claims with respect to the opening statement and the testimony about when the defendant became a suspect are without merit ( see People v De Tore, 34 NY2d 199, 207, cert denied sub nom. Wedra v New York, 419 US 1025; People v Nicholas, 1 AD3d 614), and any error in the admission of the testimony about the arrest after the lineup was harmless ( see People v Mobley, 56 NY2d 584, 585).

The defendant was not deprived of the effective assistance of counsel. Counsel pursued a viable misidentification defense throughout the trial. Viewing the record as a whole, the defendant received meaningful representation ( see People v Henry, 95 NY2d 563, 566; People v Baldi, 54 NY2d 137, 147).

The sentence imposed was not excessive ( see People v Suitte, 90 AD2d 80).

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STATE v. ODUBOGUN
(Jan 30, 2007)