People v. Hamilton

140 A.D.2d 1001, 529 N.Y.S.2d 666, 1988 N.Y. App. Div. LEXIS 5980

Opinion

The court failed to respond to the jury’s specific request to hear defendant’s testimony concerning the presence of the police car and his awareness of it. Further, the court failed to respond adequately to the jury’s written and oral requests to hear testimony concerning the direction taken by the police car. A pertinent portion of the testimony of one of the officers was read but not the victim’s testimony, which was contrary to that of the officer and favorable to the defense. Finally, the court failed to respond to the jury’s oral request for a portion of defendant’s testimony. The information sought by the jury was material to the critical factual issue underlying the defense of mistaken identity (see, People v Hardy, supra). Since the court’s response to the jury’s specific requests was inadequate, and because defense counsel alerted the court to those deficiencies, the fact that the jurors did not make further requests or express dissatisfaction with the court’s response is not determinative (People v Arcarola, supra).

We have considered the other issues raised by defendant and consider them to be lacking in merit. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — robbery, first degree; criminal possession of marihuana.) Present —Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.