People v. Davis

• Decision Date: 21 June 1994
• Citation: 205 A.D.2d 403,613 N.Y.S.2d 610
• Parties: The PEOPLE of the State of New York, Respondent, v. James DAVIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 610

613 N.Y.S.2d 610

205 A.D.2d 403

The PEOPLE of the State of New York, Respondent, v. James DAVIS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 21, 1994.

Before ROSENBERGER, J.P., and KUPFERMAN, ROSS, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Richard Lowe III, J.), rendered January 22, 1992, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

Viewing the evidence in a light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, 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), we find that the evidence was sufficient as a matter of law to support the verdict finding defendant guilty beyond a reasonable doubt of robbery in the second degree. Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672). The issues raised by defendant concerning the credibility of the prosecution's witness were properly placed before the jury, and we find no reason on the record before us to disturb its determination.

There is no merit to defendant's contention that the trial court improperly admitted the victim's testimony concerning his out-of-court identification of defendant and the arresting officer's testimony concerning the circumstances of that identification. The officer's testimony merely described his own observations prior to the arrest, and, the victim, by indicating that he could no longer identify defendant, laid a proper foundation for testifying about his prior identification (CPL 60.25).

Nor is there merit to defendant's largely unpreserved claim that various comments by the prosecutor during summation deprived him of a fair trial. As to the instance in which defendant did object, we presume that the jury followed the court's curative instructions. In any event, in view of the overwhelming evidence of guilt, any misconduct was harmless (People v. Crimmins 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).