People v. Anonymous

275 A.D.2d 210, 712 N.Y.S.2d 482, 2000 N.Y. App. Div. LEXIS 8389
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 3, 2000
StatusPublished
Cited by8 cases

This text of 275 A.D.2d 210 (People v. Anonymous) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Anonymous, 275 A.D.2d 210, 712 N.Y.S.2d 482, 2000 N.Y. App. Div. LEXIS 8389 (N.Y. Ct. App. 2000).

Opinion

—Judgment, Supreme Court, New York County (Allen Alpert, J.), rendered October 16, 1996, convicting defendant, after a jury trial, of robbery in the first degree (two counts) and robbery in the second degree, and sentencing him to two consecutive terms of 12 V2 to 25 years to run concurrently with a term of 7V2 to 15 years, affirmed.

, Defendant was convicted of participating in two gunpoint robberies. The first occurred on November 22, 1995 at a Martin Paints store on 181st Street in Manhattan. According to the victims of the robbery, defendant and an accomplice, Carl Dade, armed with guns, entered the store and announced a robbery. Defendant’s accomplice held a gun to the back of one of the [211]*211victims, Nathan Rivera, and commanded him and another victim, Elsy Alvarado, to open the cash register. After that, Rivera and Alvarado were ordered to the back of the storre, where defendant had forced yet another victim, Aníbal Losado, to lie on the floor at gunpoint.

Unsatisfied with the money found in the register, defendant ordered Alvarado and Losado to go to the basement while defendant’s accomplice forced Rivera to provide the keys to a box containing more money. Around this time, Rivera was able to clearly see defendant’s face, which was well lit by the store’s interior lighting. Unfortunately, despite Rivera’s acquiescence to the commands of his assailants, defendant’s accomplice kicked Rivera down the basement stairs, requiring him to be removed by ambulance after the robbery was completed.

Ten days later, on December 3, 1995, defendant participated in a second robbery, this time at the Martin Paints store on 125th Street, once again accompanied by his accomplice, Carl Dade. During this robbery, a salesman, Fred Crosby, observed defendant and Dade enter the store and asked them on more than one occasion if they needed assistance to which they responded that they did not. Moments later, defendant burst into the office at the back of the store, where the store manager was getting coins from the safe for the store’s registers. Complying with defendant’s demand, the manager filled a bag with approximately $8,000, at which point defendant exited the office. At this juncture, Crosby, apparently unaware that a robbery had just taken place, observed defendant and asked him if he needed assistance. Defendant responded that he did not and left the store. Although the police arrived shortly thereafter, defendant and Dade had already absconded.

A police investigation followed and, on the morning of January 2, 1996, Detective Michael Kennedy was notified that defendant had been arrested for the robbery of a Martin Paints store in Queens. Although the arrest was voided for reasons that are not entirely clear, Detective Kennedy spoke to defendant, who told him that he did not want the robbery “pinned” on him. Defendant also told Kennedy that he had information that he could provide regarding an unrelated homicide.

With this information in hand, Detective Kennedy devised a plan in which he would tell defendant to come to the station-house to talk about the homicide. Defendant subsequently agreed. During the interview that followed, defendant was asked about the robberies of the Martin Paints stores. Recognizing that his participation in the robberies was close to being detected, defendant sought to extricate himself, admit[212]*212ting that he knew the robbers but denying that he was a participant. Information obtained from defendant led to the arrest of his accomplice, Carl Dade, as well as another man.

Thereafter, Rivera, who was a victim in the November robbery, and Crosby, who was a witness in the December robbery, identified defendant in separate lineups as the perpetrator of the respective robberies. Later, at trial, Rivera and Crosby again identified defendant as the perpetrator.

In addressing the various errors defendant claims warrant a vacatur of his conviction, we initially note that the evidence against defendant was overwhelming and, notwithstanding the dissent’s contention to the contrary, it strains all bounds of credulity to believe that any of the assigned errors could have affected the verdict. As noted, defendant was unequivocally identified by witnesses to each of the two robberies. Defendant also admitted that he knew the perpetrators, although he concocted a story in which he sought to extricate himself from any involvement. We simply cannot ascribe the convergence of this evidence to coincidental misfortune.

Turning to the specific errors pointed to by defendant, the court properly exercised its discretion in permitting the People to cross-examine defendant’s main alibi witness concerning her fear of defendant (see, People v Thomas, 46 NY2d 100, 105, appeal dismissed 444 US 891) and in permitting rebuttal testimony to challenge the witness’s testimony (see, People v Harris, 57 NY2d 335, 345, cert denied 460 US 1047). The witness’s statements to the police, in which she indicated, inter alia, that she was “terrified” of defendant, provided a good-faith basis for the cross-examination. The evidence permitted a reasonable, non-speculative inference that the witness’s fear of defendant supplied a motive to furnish a false alibi (see, People v Rodriguez, 143 AD2d 854, lv denied 73 NY2d 859; People v Castrechino, 134 AD2d 877, lv denied 70 NY2d 1005; see also, People v Folk, 176 AD2d 754, lv denied 79 NY2d 947). To the extent that this evidence suggested involvement by defendant in uncharged crimes, it was more probative than prejudicial. Since the rebuttal evidence related to specific bias rather than general credibility, it was not collateral (see, People v Chin, 67 NY2d 22, 28-29).

Next, by failing to object, failing to make specific objections, or by failing to request further relief after objections were sustained, defendant failed to preserve his various challenges to the People’s summation and, contrary to the dissent’s contention, there is nothing in this record warranting consideration of his claims in the interest of justice. Were we to review these [213]*213claims, we would find that the challenged comments were largely responsive to issues raised by the defense and did not deprive defendant of a fair trial (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884).

As to defendant’s challenge to the court’s reasonable doubt charge, it was not preserved (see, People v Thomas, 50 NY2d 467), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that the charge as a whole conveyed the proper standards (see, People v Cubino, 88 NY2d 998).

Finally, in view of the nature of the crimes charged, we perceive no abuse of sentencing discretion. Concur — Williams, Mazzarelli, Rubin and Friedman, JJ.

Rosenberger, J. P., dissents in a memorandum as follows: I would reverse and remand for a new trial on the sole ground of the prosecutor’s inflammatory and misleading statements on summation (see, People v Ashwal, 39 NY2d 105, 110). Even when there is strong evidence of a defendant’s guilt, reversal is warranted when the cumulative effect of erroneous and prejudicial statements by the prosecutor denied the defendant a fair trial (People v Ortiz, 116 AD2d 531; People v Rosa, 108 AD2d 531, 539; People v Dowdell, 88 AD2d 239, 248; People v Cancel, 61 AD2d 497, 498).

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Cite This Page — Counsel Stack

Bluebook (online)
275 A.D.2d 210, 712 N.Y.S.2d 482, 2000 N.Y. App. Div. LEXIS 8389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-anonymous-nyappdiv-2000.