People v. Middleton

159 A.D.2d 350, 552 N.Y.S.2d 629, 1990 N.Y. App. Div. LEXIS 2875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1990
• Status: Published

Opinion

Judgment of the Supreme Court, New York County (Rena Uviller, J.), rendered on September 22, 1988, convicting defendant, after a trial by jury, of robbery in the third degree and sentencing him to a term of imprisonment of 2Vi to 5 years, unanimously affirmed.

Defendant was convicted of snatching a chain from the complainant. The police officer testified that after he had a conversation with the complainant, he arrested defendant. Defendant contends that this was improper bolstering by a police officer of the complainant’s identification of defendant. Bolstering by a police officer alone rarely constitutes reversible error, except where there is a danger that the jury will take the police officer’s testimony as a substitute for identification by the eyewitness or if undue prominence is given to the bolstering testimony (People v Burgess, 66 AD2d 667, 668). In this instance, the complainant testified herself and was subject to cross-examination. The alleged bolstering consisted of only three questions. Furthermore, the complainant observed the defendant at the time of the robbery and pursued him (losing sight of him only momentarily). Her chain was ultimately recovered from defendant’s possession. Therefore, this testimony was harmless in view of the overwhelming proof of defendant’s guilt (People v Crimmins, 36 NY2d 230, 241). Concur—Kupferman, J. P., Sullivan, Rosenberger, Asch and Smith, JJ.