People v. Irby

• Citation: 162 A.D.2d 714,557 N.Y.S.2d 416
• Parties: The PEOPLE, etc., Respondent, v. Juan IRBY, Appellant.
• Decision Date: 25 June 1990
• Court: New York Supreme Court Appellate Division

Page 416

557 N.Y.S.2d 416

162 A.D.2d 714

The PEOPLE, etc., Respondent, v. Juan IRBY, Appellant.

Supreme Court, Appellate Division Second Department.

June 25, 1990.

David Seth Michaels, Spencertown, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Peter A. Weinstein, of counsel, Caroline R. Donhauser, on the brief), for respondent.

Before THOMPSON, J.P., and BRACKEN, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered June 14, 1984, convicting him of attempted murder in the second degree and attempted robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The trial court properly exercised its discretion in granting the People's motion to consolidate the defendant's case with that of his codefendant (see, CPL 200.40[2]; People v. Fisher, 121 A.D.2d 655, 504 N.Y.S.2d 45). No substantial difference in the quantity and quality of the evidence the prosecution presented with respect to the defendant and the codefendant existed which would warrant a severance in order to preserve the defendant's right to a fair trial (see, People v. Moss, 149 A.D.2d 740, 540 N.Y.S.2d 705; People v. Larkin, 135 A.D.2d 834, 523 N.Y.S.2d 131; cf., People v. Mahboubian, 74 N.Y.2d 174, 182-188, 544 N.Y.S.2d 769, 543 N.E.2d 34).

The defendant next contends that the trial court erred by permitting the prosecutor to elicit testimony from the codefendant regarding his out-of-court photographic identification of the defendant. We agree that it was error to permit testimony as to an extra-judicial identification of the defendant's photograph since such testimony constituted improper bolstering (see, e.g. People v. Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302; People v. Griffin, 29 N.Y.2d 91, 323 N.Y.S.2d 964, 272 N.E.2d 477; People v. Caserta, 19 N.Y.2d 18, 277 N.Y.S.2d 647, 224 N.E.2d 82). However, under the circumstances of this case the admission of the evidence was harmless error since the other proof of identification and of guilt is clear and strong (see, People v. Johnson, 32 N.Y.2d 814, 345 N.Y.S.2d 1011, 299 N.E.2d 256; cf., People v. Osgood, 89 A.D.2d 76, 83, 454 N.Y.S.2d 734). Here, the victim, a police officer who is a trained observer, had ample opportunity to view the defendant during the commission of the crimes and readily made a positive identification of the defendant at a lineup and at trial. The officer fired three shots at the defendant and one shot at the codefendant. Shortly thereafter, and within a few blocks of the crime scene, a cabdriver picked up the defendant, who was dressed only in blood-stained boxer shorts and a red tank top. The defendant claimed that he had been shot during the course of a robbery. The...