People v. Howard

• Decision Date: 18 September 1989
• Citation: 153 A.D.2d 903,545 N.Y.S.2d 394
• Parties: The PEOPLE, etc., Respondent, v. Norman HOWARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 394

545 N.Y.S.2d 394

153 A.D.2d 903

The PEOPLE, etc., Respondent, v. Norman HOWARD, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 18, 1989.

Philip L. Weinstein, New York City (Harold V. Ferguson, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Andrew J. Frisch and Jay L. Weiner, of counsel), for respondent.

Before MOLLEN, P.J., and SPATT, SULLIVAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered November 13, 1986, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On appeal, the defendant contends, inter alia, that the evidence adduced at trial was legally insufficient to support the jury verdict of guilt, that the verdict was against the weight of the evidence, and that he was deprived of a fair trial as a result of the trial court's failure to give an alibi charge. We disagree and, accordingly, affirm the judgment of conviction.

The evidence adduced at trial established that on the morning of July 13, 1985, at approximately 9:00 A.M., the 23-year-old complainant entered the subway station at Washington and Lafayette Avenues in Brooklyn on her way to work. When the complainant descended the stairs of the subway station and reached the mezzanine level, she was approached from behind by the defendant who cornered her against the wall. The complainant, who at this point was facing the defendant, observed that he was carrying a silver jackknife which had a two and one-half inch blade. The defendant demanded the complainant's money and wristwatch and while the defendant was looking through the complainant's wallet, the complainant screamed and ran up the stairs to the street. The complainant estimated that the entire incident lasted approximately one or two minutes and that the lighting conditions were sufficient for her to see the defendant, who stood approximately two feet away from her. The complainant described the defendant as a "lite-skinned" black man or a "darker skinned" Hispanic male approximately 5 feet 7 inches tall and 120 pounds. The defendant, on the morning in question, was wearing a red tee shirt and jeans with a white cloth bandana around his forehead which came down to his eyebrows. The defendant's hair was "kind of poofed up a little above it". The complainant also testified that the defendant's face was "scruffy" and that his teeth were crooked. When asked if she noted anything in particular about the defendant's eyes, the complainant stated: "No, I didn't. He was talking softly, he was whispering, so I was * * * looking, [at] his mouth and jaw area trying to make sure that I understood".

Less than one month after the robbery, the complainant identified the defendant in a lineup. At that time, the complainant first observed that there was "something wrong with one [the defendant's] eyes" and that it was "half closed".

The defendant's mother testified on the defendant's behalf and stated that the defendant's father had died several days prior to the day of the robbery and that on July 12, 1985, the defendant had his head shaved in preparation for his father's funeral which was held that afternoon. The defendant's mother also stated that in March 1984 her son was treated in the hospital for an eye injury caused by lye, which left his right eye partially closed. On cross-examination, the defendant's mother testified that on the morning of July 13, 1985, she woke up at 8:00 A.M. and went to the kitchen to make breakfast. She did not see the defendant until 10:00 A.M. when he came downstairs wearing pajamas. The defendant's mother acknowledged that it was possible for someone to exit the house without passing through the kitchen. On re-direct examination, however, the defendant's mother stated that she would have heard someone leaving the house during this period because the door made a loud noise.

The defendant's son and sister as well as a close family friend also testified that the defendant was clean shaven on the day before the robbery was committed.

The defendant never requested that the trial court give an alibi charge nor did he take an exception to the jury charge because of the absence of such a charge. During its charge, the court did, however, emphasize the fact that the defendant was not required to "prove anything" and that the prosecution's burden of proving each and every element of the crime beyond a reasonable doubt never shifted to the defendant. The court also gave the jury a detailed identification charge.

Based upon a review of the record, we find that the evidence adduced at trial, when viewed in a light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), was legally sufficient to support the verdict of guilt beyond a reasonable doubt. Although the evidence against the defendant was provided solely by the complainant, she testified that she was able to observe the defendant at close range for one to two minutes under adequate lighting conditions and, while she did not observe the defendant's half-closed right eye, she was able to provide the police with a fairly detailed description of the defendant. Moreover, the complainant, in selecting the defendant out of a lineup less than one month after the robbery, stated that she was "very sure" that the defendant was the person who committed the robbery.

Upon the exercise of our factual review power (CPL 470.15[5], we conclude that the verdict of guilt was not against the weight of the evidence. As stated above, although the complainant acknowledged her failure to observe the deformity in the defendant's right eye, she explained that her failure to do so was attributed to her focusing her attention on the defendant's mouth and jaw area. On this point, it should be noted that the jury was able to observe the defendant's right eye area first-hand and obviously concluded that the complainant's failure to observe this physical characteristic in the defendant's appearance was not fatal to the People's case. Moreover, the defense witnesses' testimony to the effect that the defendant's head was clean shaven on the day prior to the robbery, presented an issue of credibility to be determined by the jury which saw and heard these witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112), and which was thoroughly charged on the issue of identification. We find that the jury's determination herein, which is to be accorded great weight on appeal and is not to be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500), was not against the weight of the credible evidence.

Finally, we note that the defendant's contention that he was denied a fair trial by reason of the trial court's failure to give an alibi charge has not been preserved for appellate review since the defendant neither requested such a charge nor excepted to the jury charge on this basis (CPL 470.05[2]. Moreover, given the circumstances of this case, we decline to reach this issue in the exercise of our interest of justice jurisdiction (CPL 470.15[6]. In the first instance, the focus of the asserted defense in this...