People v. Bryant

165 A.D.2d 693, 564 N.Y.S.2d 250, 1990 N.Y. App. Div. LEXIS 11059

Opinion

Judgment of the Supreme Court, New York County (Harold Rothwax, J.), rendered October 21, 1988, convicting defendant, after jury trial, of robbery in the second degree and attempted robbery in the second degree and sentencing him, as a predicate felon, to concurrent indeterminate terms of imprisonment of from 7Vi to 15 years and 3Vi to 7 years to run consecutively with a sentence imposed in Bronx County under indictment No. 5293/86, is unanimously affirmed.

There is no merit to defendant’s contention that the prosecutor committed Trowbridge error (People v Trowbridge, 305 NY 471) by eliciting testimony from the detective who conducted the lineups concerning the procedures employed, since in fact the victim identified a person other than defendant in the lineup. Clearly, no bolstering occurred.

Nor was the court’s marshaling of the evidence unbalanced. In the portion of the charge complained of by defendant, the court merely set forth the People’s contentions and balanced that statement by setting forth defendant’s contentions including claims that he had been misidentified by one victim and not identified at all by the other. Under these circumstances, and in reading the charge as a whole, we find that the court’s marshaling did not deprive defendant of a fair trial. (People v Saunders, 64 NY2d 665, 667.)

Concur — Murphy, P. J., Sullivan, Milonas, Asch and Smith, JJ.