People v. Brown

• Decision Date: 19 October 1987
• Citation: 520 N.Y.S.2d 166,133 A.D.2d 773
• Parties: The PEOPLE, etc., Respondent, v. Robert BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 166

520 N.Y.S.2d 166

133 A.D.2d 773

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

Supreme Court, Appellate Division Second Department.

Oct. 19, 1987.

Dominic J. Sichenzia, Garden City, for appellant.

Robert Brown, pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Darrell Fields and Polly N. Passonneau, of counsel), for respondent.

Before KUNZEMAN, J.P., and KOOPER, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered June 1, 1983, convicting him of murder in the second degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was for the suppression of identification testimony.

ORDERED that the judgment is affirmed.

On December 20, 1981, Clyde Williams and his friend Victor Marion went to 1050 Lafayette Avenue in Brooklyn to buy some marihuana. As they were leaving the building, the defendant, who had been standing in the vestibule, grabbed Marion's collar, pulled at his gold chain, and held a gun to his face. Williams, unaware of the confrontation, continued on, and the defendant turned and shot Williams in the head. Williams died on January 1, 1982, as a result of the gunshot wound.

The defendant was arrested on March 1, 1982, and, after being given his Miranda warnings, told the police that, although he was standing outside the building when the incident occurred, the shooting was actually done by someone named Tyrone Johnson. He gave a similar statement on videotape to an Assistant District Attorney, and that tape was admitted into evidence.

The defendant first contends that the court committed several errors in its charge on reasonable doubt. The defendant, however, did not make any request as to the charge on reasonable doubt or as to the burden of proof, nor did he object in any manner to the charge as given. Thus, the defendant has failed to preserve any error of law in this regard for this court's review (see, CPL 470.05[2]; People v. Hoke, 62 N.Y.2d 1022, 479 N.Y.S.2d 495, 468 N.E.2d 677). In any event, the charge, when viewed as a whole, correctly instructed the jury on the concepts of reasonable doubt and the burden of proof (see, People v. Quinones, 123 A.D.2d 793, 507 N.Y.S.2d 417, lv. denied 69 N.Y.2d 749, 512 N.Y.S.2d 1053, 505 N.E.2d 251; People v. Bebee, 105 A.D.2d 751, 481 N.Y.S.2d 404).

The defendant next argues (both in the brief submitted by assigned counsel and in his pro se supplemental brief) that the court erred in refusing to allow him to introduce into evidence a court file containing a physical description and photograph of a person named Tyrone Johnson, which he maintains would have tended to corroborate the exculpatory portions of his statements to the police and the Assistant District Attorney. While the defendant has the right to introduce evidence that a person other than himself was the perpetrator of the crime charged, such evidence must do more than raise a mere suspicion that another person committed the crime; there must be a clear link between the third party and the crime in question (see, People v. Austin, 112 A.D.2d 242, 491 N.Y.S.2d 458; People v. Aulet, 111 A.D.2d 822, 490 N.Y.S.2d 567, lv. denied 66 N.Y.2d 761, 497 N.Y.S.2d 1034, 488 N.E.2d 120). In this case, there was no such link in that the production of the file of someone bearing that name is not sufficient by itself to link that person to the crime. The file and photograph, without an identifying witness, was of limited probative value. No testimony was elicited to establish that the Tyrone...