People v. Gillman

• Decision Date: 19 September 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Albert GILLMAN, a/k/a Ronald Green, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 337

631 N.Y.S.2d 337

219 A.D.2d 505

The PEOPLE of the State of New York, Respondent, v. Albert GILLMAN, a/k/a Ronald Green, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Sept. 19, 1995.

R.L. Moore, for respondent.

L.R. Ortiz, for defendant-appellant.

Before SULLIVAN, J.P., and RUBIN, KUPFERMAN, ASCH and NARDELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Joseph Mazur, J. at Mapp hearing, trial, and sentence; Frank Diaz, J., on omnibus motion), rendered March 26, 1993, convicting defendant, after a jury trial, of robbery in the first degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, and sentencing him to concurrent terms of 5 to 15 years, 2 to 6 years, and 1 to 3 years, respectively, unanimously affirmed.

The motion court did not err in summarily denying defendant's motion for a Wade hearing, where the complainant was already in pursuit of defendant when police accompaniment became available, and she identified defendant a short distance away (see, People v. Dixon, 85 N.Y.2d 218, 223, 623 N.Y.S.2d 813, 647 N.E.2d 1321, citing People v. Rios, 156 A.D.2d 397, 548 N.Y.S.2d 348). Nor is there merit to defendant's largely unpreserved claim that the prosecutor shifted the burden of proof by his questioning of defendant's alibi witness and comments during summation, which constituted proper impeachment of the alibi witness and comment thereon (see, People v. Tankleff, 84 N.Y.2d 992, 994, 622 N.Y.S.2d 503, 646 N.E.2d 805; People v. Fuller, 211 A.D.2d 468, 620 N.Y.S.2d 391, lv. denied 85 N.Y.2d 862, 624 N.Y.S.2d 381, 648 N.E.2d 801). In any event, in view of the overwhelming evidence of guilt, the prosecutor's remarks, if at all improper, were harmless (see, People v. Morgan, 66 N.Y.2d 255, 259, 496 N.Y.S.2d 401, 487 N.E.2d 258). We also reject defendant's contention that he was denied a fair trial by the arresting officer's singular and inadvertent reference to him by another name in contravention of the court's prior ruling that defendant should be referred to only as Ronald Green, the court having promptly corrected the officer and later instructed the jury not to engage in any speculation (see, People v. Perez, 203 A.D.2d 123, 124, 610 N.Y.S.2d 483, lv. denied 83 N.Y.2d 970, 616 N.Y.S.2d 23, 639 N.E.2d 763, citing People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710).