People v. Austin

• Decision Date: 03 July 1989
• Parties: The PEOPLE, etc., Respondent, v. Robert AUSTIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 507

543 N.Y.S.2d 507

152 A.D.2d 590

The PEOPLE, etc., Respondent, v. Robert AUSTIN, Appellant.

Supreme Court, Appellate Division Second Department.

July 3, 1989.

Richard J. Korn, Forest Hills, for appellant.

Robert Austin, pro se.

John J. Santucci, Dist. Atty., Kew Gardens (Annette Cohen, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, BALLETTA and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Di Tucci, J.), rendered July 18, 1985, convicting him of rape in the first degree, criminal use of a firearm in the first degree robbery in the second degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in a light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Contrary to the defendant's contentions, the evidence demonstrated that the complaining witness's in-court identification was based on her opportunity to view her assailant at close range and in an illuminated area during the commission of the crimes which spanned a period of some two hours. Moreover, her testimony that the defendant approached her from behind and pressed a metal object into her back while announcing that he had a gun, was sufficient to establish that he displayed "what appear[ed] to be a pistol, revolver, rifle, shot gun, machine gun or other firearm" within the meaning of Penal Law § 160.10(2)(b) (see, People v. Baskerville, 60 N.Y.2d 374, 381, 469 N.Y.S.2d 646, 457 N.E.2d 752; People v. Lopez, 73 N.Y.2d 214, 538 N.Y.S.2d 788, 535 N.E.2d 1328). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5].

Although, as a general rule, it is improper to adduce testimony from a complaining witness that he identified the defendant from a photograph (see, People v. Griffin, 29 N.Y.2d 91, 323 N.Y.S.2d 964, 272 N.E.2d 477; People v. Caserata, 19 N.Y.2d 18, 277 N.Y.S.2d 647, 224 N.E.2d 82; see also, People v. Bolden, 58 N.Y.2d 741, 459 N.Y.S.2d 22, 445 N.E.2d 198), an exception is available where defense counsel opens the door to this inquiry during his cross-examination of the witness (see, People v. Smith, 133 A.D.2d 863, 864, 520 N.Y.S.2d 222, lv. denied 71 N.Y.2d 903, 527 N.Y.S.2d 1012, 523 N.E.2d 319; People v. Giallombardo, 128 A.D.2d 547, 548, 512 N.Y.S.2d 481, lv. denied 69 N.Y.2d 1004, 517 N.Y.S.2d 1037, 511 N.E.2d 96). Hence, it was not improper for the prosecutor to elicit clarifying testimony from the complaining witness, on redirect examination, that she had identified the defendant from a photograph since defense counsel opened the door to this area of inquiry by creating the misimpression that the complaining witness was unable to make a...