People v. Phillips

237 A.D.2d 386, 658 N.Y.S.2d 320, 1997 N.Y. App. Div. LEXIS 2283

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered May 13, 1994, convicting him of robbery in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

During summation, the prosecutor improperly asserted that a prosecution witness had identified the defendant during a lineup as having been one of the robbers (see, People v Pavao, 59 NY2d 282). However, the prosecutor’s mischaracterization was cured by the court’s prompt curative instruction to the jury, during which the court stated, "I think [the witness] said he wasn’t sure as to which person * * * he picked out”, and invited the jury to request a readback of the relevant testimony (see, People v Galloway, 54 NY2d 396; People v Alexandria, 126 AD2d 655). In any event, in light of the overwhelming evidence of the defendant’s guilt, the error was harmless (see, People v Crimmins, 36 NY2d 230).

The defendant’s remaining contentions are either not preserved for appellate review or without merit. Rosenblatt, J. P., Miller, Ritter and Goldstein, JJ., concur.