People v. Moya

115 A.D.2d 769, 497 N.Y.S.2d 147, 1985 N.Y. App. Div. LEXIS 55185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1985
• Status: Published

Opinions

Appeal by defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered June 16, 1981, convicting him of robbery in the first degree, robbery in the second degree, assault in the second degree (two counts), and grand larceny in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant’s motion to suppress identification testimony.

Judgment affirmed.

The defendant was convicted of a November 10, 1979 robbery primarily upon identification made of him by the complainant at the trial and at the hospital emergency room where she was being treated for a knife wound sustained during the robbery. The defendant presented two relatives as alibi witnesses who testified that, at the time of the robbery, he had been having dinner with them at their home a few blocks away from the scene of the robbery.

The complainant’s testimony regarding the hospital showup and her in-court identification of the defendant were properly admitted since, in light of the promptness of the showup and the strength of the complainant’s recollection, the showup was not unduly suggestive or conducive to mistaken identification (see, People v Soto, 87 AD2d 618, 619; People v Brnja, 70 AD2d 17, affd 50 NY2d 366). In any event, the complainant had a sufficient independent basis for her in-court identification because of her ability to observe the defendant clearly during the commission of the crime (see, People v Cobenais, 39 NY2d 968; People v Rivera, 22 NY2d 453, cert denied 395 US 964). The defendant has failed to preserve for appellate review his claim that the trial court’s instructions on identification and alibi were insufficient since defense counsel neither objected to the proposed charges nor excepted to the charges as given (see, CPL 470.05 [2]; People v Whalen, 59 NY2d 273). A reversal in the interest of justice is not warranted because, with regard to the alibi charge, the jury was instructed that the prosecution bore the burden of proof (see, People v Thomas, 50 NY2d 467) and because, taking the identification charge as a whole, it gave adequate guidance to the jury with respect to reviewing and evaluating identification testimony (see, People v Simmons, 97 AD2d 594).

Defendant has also failed to preserve for review his claim of error in the prosecutor’s summation which referred once to defendant’s silence upon his confrontation with the complainant. Although the remark was better left unsaid, the language was harmless when weighed against the strength of the identification evidence (see, People v Johnson, 104 AD2d 453; People v Gonzalez, 102 AD2d 895).

Finally, the trial court properly excluded from evidence a tape recording of "911” calls made to police at the time of the robbery since no proper foundation was laid for its admission (see, CPLR 4518 [a]). Mangano, J. P., Bracken and Weinstein, JJ., concur.