People v. Cochran

• Decision Date: 11 May 2006
• Docket Number: 8499.
• Citation: 29 A.D.3d 365,814 N.Y.S.2d 160,2006 NY Slip Op 03695
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIE COCHRAN, Appellant.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 365

814 N.Y.S.2d 160

2006 NY Slip Op 03695

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIE COCHRAN, Appellant.

8499.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 11, 2006.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 3, 2003, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to concurrent terms of seven years and 2 to 4 years, respectively, unanimously affirmed.

The People's rebuttal testimony tended to disprove the defense case and was not collateral. This evidence did not bear solely on the general credibility of defendant's alibi witness. Instead, it impacted upon the credibility of the alibi itself, since it directly supported the People's claim that the alibi was a contrivance which followed an unsuccessful attempt to contrive a completely different alibi (see People v Patterson, 194 AD2d 570 [1993], lv denied 82 NY2d 757 [1993]; People v Beavers, 127 AD2d 138, 142 [1987], lv denied 70 NY2d 642 [1987]).

The People provided sufficient notice that there had been a lineup identification procedure (see CPL 710.30 [1] [b]). It was not necessary to provide separate notice that, after identifying defendant at the lineup, the victim also asked for the participants to speak and then reiterated her identification, especially since defendant possessed adequate information regarding a possible voice identification (see People v McRae, 195 AD2d 180, 184-185 [1994], lv denied 83 NY2d 969 [1994]). Defendant, who mentioned the vocal aspect of the lineup in his own testimony at the suppression hearing, had a suitable opportunity to explore that issue but did not avail himself thereof.

During summation, the prosecutor did not shift the burden of proof or deprive defendant of a fair trial when he asked rhetorically why defendant did not call an additional witness, who, according to defendant's evidence, would have been able to provide material testimony bearing on the alibi defense (see People v Tankleff, 84 NY2d 992, 994-995 [1994]; People v Smith, 190 AD2d 522 [1993], lv denied 81 NY2d 977 [1993]). This witness was presumably favorable to defendant because he was defendant's relative, and defendant had been living in the same apartment as this witness at the time of his arrest. Furthermore, this person was listed as an alibi...