People v. Bailey

• Decision Date: 06 November 1989
• Citation: 155 A.D.2d 467,547 N.Y.S.2d 646
• Parties: The PEOPLE, etc., Respondent, v. Calvin BAILEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 646

547 N.Y.S.2d 646

155 A.D.2d 467

The PEOPLE, etc., Respondent, v.Calvin BAILEY, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 6, 1989.

Philip L. Weinstein, New York City(Jonathan Heller, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ivan Vogel, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, BRACKEN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County(Appelman, J.), rendered November 6, 1987, convicting him of attempted murder in the second degree, robbery in the first degree (two counts), robbery in the second degree, and assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).

The defendant contends that the trial court's admission of certain testimony deprived him of a fair trial.Specifically, Police Officer Michael Dempsey of the Queens Robbery Unit testified that he had shown the victim approximately 2,000 photographs from police photograph books which did not contain a picture of the defendant.The victim had previously testified on cross-examination, in response to the defense counsel's question of whether he understood the importance of giving the police an accurate description of the perpetrator of the crime, that he had viewed photographs exhibited by the police.He replied negatively to a further question posed by the defense counsel as to whether he recognized any of the photographed individuals.By failing to move to strike the victim's initial unresponsive answer and compounding the problem by pursuing this line of questioning, the defense counsel opened the door for the prosecutor to elicit testimony to clarify and explain that issue (see, People v. Bolden, 58 N.Y.2d 741, 459 N.Y.S.2d 22, 445 N.E.2d 198;see also, People v. Almonte, 135 A.D.2d 824, 522 N.Y.S.2d 928;People v. Smith, 133 A.D.2d 863, 520 N.Y.S.2d 222).The defendant's reliance upon People v. Zanfordino, 78 A.D.2d 558, 432 N.Y.S.2d 15andPeople v. Rothaar, 75 A.D.2d 652, 427 N.Y.S.2d 272 is misplaced.In both of those cases the so-called negative identification testimony was elicited in the first instance on the People's direct case.

The defendant further charges that the trial court erred in permitting the testimony of Police Officer William Crescenzo that he arrested the defendant following a conversation with the victim and that the victim had pointed out the defendant to the police.Although this testimony may be construed as implicit or inferential bolstering in violation of the rule of People v. Holt, 67 N.Y.2d 819, 501 N.Y.S.2d 641, 492 N.E.2d 769;cf., People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841, in the context of this case, in which the conviction stands upon the clear and strong...