People v. Cheek

• Decision Date: 23 July 1990
• Citation: 558 N.Y.S.2d 633,163 A.D.2d 580
• Parties: The PEOPLE, etc., Respondent, v. Kevin CHEEK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 633

558 N.Y.S.2d 633

163 A.D.2d 580

The PEOPLE, etc., Respondent, v. Kevin CHEEK, Appellant.

Supreme Court, Appellate Division, Second Department.

July 23, 1990.

Philip L. Weinstein, New York City (James Murphy, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Stephanie D. Schwartz, of counsel), for respondent.

Before THOMPSON, J.P., and EIBER, ROSENBLATT and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Bambrick, J.), rendered April 18, 1988, convicting him of robbery in the first degree (two counts) and intimidating a witness in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL § 470.15[5].

On appeal, the defendant contends, inter alia, that he was deprived of a fair trial when the court allowed the complainant to testify as to the substance of the complainant's report of the robbery to a police officer. The admission of evidence of this prior consistent statement impermissibly bolstered the complainant's earlier account of the events, since there had been no impeachment of the complainant with that statement and no charge had been made of a recent fabrication. A review of the trial minutes discloses, however, that any issue of law with respect to this specific claim of error is unpreserved for appellate review (see, CPL § 470.05[2]. In any event, although the admission of this testimony was error (see, People v. Jimenez, 102 A.D.2d 439, 443, 477 N.Y.S.2d 170), we find it harmless, in light of the overwhelming evidence of the defendant's guilt and our conclusion that there was no significant probability that the court would have acquitted the defendant if the testimony had been excluded (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We have examined the defendant's remaining contentions and find them unpreserved for appellate review (see, CPL 470.05[2]; see also, People v. Glass, 43 N.Y.2d 283, 286, 401 N.Y.S.2d 189, 372 N.E.2d 24).