People v. Kearse

177 A.D.2d 392, 576 N.Y.S.2d 242, 1991 N.Y. App. Div. LEXIS 14743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered December 13, 1988, which convicted defendant after a jury trial of robbery in the first degree, and sentenced her to a prison term of 4 to 12 years, is unanimously affirmed.

Complainant, who was robbed in the elevator of her apartment building by a woman who punched her and held what appeared to be a gun, identified defendant as her assailant several weeks later while looking through a one-way mirror at a line-up of six people at a police precinct.

At trial, defendant testified that after hearing that a police officer was looking for her, she contacted him and told him that she did not believe that he wanted to see her so that she could identify someone in a photograph he had, and that she would not go down to the precinct. In rebuttal, the detective testified that he told defendant that she was a suspect in a robbery investigation, and that she promised to voluntarily come in for a line-up but did not.

Defendant’s testimony concerning her failure to respond to the police efforts to see her, as elicited in the prosecutor’s cross-examination, was properly admitted as evidence regarding consciousness of guilt (see, People v Holland, 174 AD2d 508, 510). The detective’s testimony was proper rebuttal to the central issue raised by defendant’s testimony as to whether her refusal to report to the police was indicative of consciousness of guilt (see, People v Beavers, 127 AD2d 138, 141). Concur —Ellerin, J. P., Wallach, Ross, Asch and Smith, JJ.