People v. Campbell

• Decision Date: 29 September 1986
• Citation: 123 A.D.2d 437,506 N.Y.S.2d 742
• Parties: The PEOPLE, etc., Respondent, v. Kenneth CAMPBELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 742

506 N.Y.S.2d 742

123 A.D.2d 437

The PEOPLE, etc., Respondent, v. Kenneth CAMPBELL, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 29, 1986.

Philip L. Weinstein, New York City (Ann Cypher, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Rosalyn H. Richter and Robert E. Lesser, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Levine, J.), rendered July 5, 1984, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

At about 12:30 A.M. on November 5, 1983, the complainant, a New York City Department of Corrections Officer, was robbed at gunpoint of his cash, jewelry, service revolver and shield in the well-lighted main floor hallway and lighted stairwell of an apartment building at 330 Dumont Avenue in Brooklyn, by two individuals who the complainant subsequently identified as the defendant and an accomplice. The robbery lasted about one and one-half to two minutes during which the complainant saw the perpetrators. At the trial the defendant not only challenged the complainant's identification but also presented an alibi defense. The alibi witnesses consisted of the defendant's aunt and uncle, Ione and David McShaw, and a friend of the defendant. The defendant and the McShaws lived in different apartments in 330 Dumont Avenue and the alibi witnesses and the defendant testified that they were together watching television in the McShaws' apartment on the ninth floor before, during and after the time of the robbery. During the cross-examination of Ione McShaw, the prosecutor elicited from her that she (1) was aware of the charges against the defendant, (2) recognized that she possessed exculpatory information, and (3) was familiar with the means to make the information available to law enforcement authorities. Mrs. McShaw's relationship to the defendant provided a reasonable motive to exonerate him. The prosecutor asked Mrs. McShaw if she went to the police after she realized that the defendant had been in her apartment while the robbery was taking place. She responded "[n]o" and volunteered that she told the defendant's mother of her realization and that defense counsel subsequently told her not to speak to anyone. During summation, the prosecutor commented on Mrs. McShaw's failure to contact the police to tell them that they had arrested the wrong man. The defense counsel did not object to the cross-examination questions or to the comment during the prosecutor's summation.

The defendant initially contends that his guilt was not established beyond a reasonable doubt. We do not agree. Our review of the record indicates that the defendant's evidence challenging the unwavering identification of him by the complainant presented a credibility question which was for the jury to determine (see, e.g., People v. Gruttola, 43 N.Y.2d 116, 122, 400 N.Y.S.2d 788, 371 N.E.2d 506; People v. Joyiens, 39 N.Y.2d 197, 203, 383 N.Y.S.2d 259, 347 N.E.2d 621). Likewise, the credibility of the alibi witnesses, who testified inconsistently, was for the jury to determine (see, People v. Joyiens, supra; People v. DeTore, 34 N.Y.2d 199, 206-207, 356 N.Y.S.2d 598, 313 N.E.2d 61, cert. denied sub nom. Wedra v. New York, 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300). When viewed in the light most favorable to the People, the record contains evidence qualitatively and quantitatively sufficient to support the verdict (see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264).

The defendant next contends that the trial court's failure to call a conference at the bench to ascertain the basis for Ione McShaw's not going to the police and the court's permitting the prosecutor to question her on that subject and commenting thereon during summation was prejudicial error. We reject this contention. Initially we note that there was no protest at trial concerning the prosecutor's cross-examination of Ione McShaw as to her failure to go to the police, nor was an objection made to the associated...