People v. Rivera

259 A.D.2d 316, 684 N.Y.S.2d 787, 1999 N.Y. App. Div. LEXIS 2415

Opinion

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered June 27, 1996, convicting defendant, after a jury trial, of robbery in the first degree, and, upon his plea of guilty, of robbery in the first degree, and sentencing him to concurrent terms of 12 to 24 years and 4 to 12 years, respectively, unanimously affirmed.

The court properly exercised its discretion in permitting a detective to give lay opinion testimony as to defendant’s presence in a surveillance videotape of the crime and in still photographs made therefrom, since an adequate foundation was set forth, and the testimony was relevant to the basis for defendant’s arrest and aided the jury in its independent evaluation of the photographs and videotape (see, People v Russell, 79 NY2d 1024). Furthermore, the court gave the jury extensive instructions regarding the challenged testimony, specifically stating that the detective was giving his view of who appeared in the photographs and on the videotape, and that the factual determination concerning who appears therein was the jury’s alone. In any event, were we to find the receipt of this testimony to be error, we would find such error harmless in light of the overwhelming evidence of defendant’s guilt.

We perceive no abuse of sentencing discretion. Concur— Ellerin, P. J., Rubin, Mazzarelli and Saxe, JJ.