People v. Johnson
| Decision Date | 16 September 1991 |
| Citation | 574 N.Y.S.2d 380,176 A.D.2d 269 |
| Parties | The PEOPLE, etc., Respondent, v. Robert JOHNSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Irma B. Ascher, of counsel), for appellant.
William L. Murphy, Dist. Atty., Staten Island (Karen F. McGee and Yolanda L. Rudich, of counsel), for respondent.
Before KUNZEMAN, J.P., and SULLIVAN, HARWOOD and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered July 25, 1989, convicting him of robbery in the first degree and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, we discern no error in the hearing court's refusal to suppress identification testimony based on the showup identification conducted in this case. The record demonstrates that defendant was detained in close physical and temporal proximity to the crime, the police promptly brought the complainant to the scene to view him, and the showup procedure employed was not unnecessarily suggestive under the circumstances presented (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861; People v. Moore, 156 A.D.2d 394, 548 N.Y.S.2d 344; People v. Lewis, 123 A.D.2d 716, 507 N.Y.S.2d 80).
We further reject the defendant's contention that the trial court improperly refused to admit into evidence the police complaint report to demonstrate that the complainant had made a prior statement inconsistent with his trial testimony. The issue of the admissibility of a prior inconsistent statement for the purpose of impeaching a witness is addressed to the sound discretion of the trial court, and its determination will not be set aside absent an improvident exercise of that discretion (see, People v. Auricchio, 141 A.D.2d 552, 529 N.Y.S.2d 163). Given the lack of a proper foundation for the admission of the report (see, Richardson, Evidence, § 502 [Prince 10th ed] and the uncertainty as to the source of its contents, we discern no improvident exercise of discretion in its exclusion. In any event, even if the court's ruling could be deemed erroneous, the defendant's counsel clearly conveyed the information within the report to the jury during his examination of the police witnesses at trial, and the jury therefore was made aware of the purported inconsistencies and alterations in the document (see, People v. Maisonave, 140 A.D.2d 545, 528 N.Y.S.2d 626; People v. Henson, 113 A.D.2d 954, 493 N.Y.S.2d 851). Accordingly, the defendant suffered no prejudice as a result of the court's ruling.
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5]. Insofar as the defendant challenges the credibility of the prosecution witnesses, we note that the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500). We discern no basis for disturbing the jury's determination in this case.
We have considered the defendant's remaining claims of error and find them to be either unpreserved for appellate review, without merit, or harmless under the circumstances of this case.
HARWOOD, J., dissents and votes to modify the judgment, on the law, by reversing the conviction for robbery in the first degree, granting that branch of the defendant's omnibus motion which was to suppress identification testimony, and dismissing that count of the indictment, with the following memorandum:
The complainant, a letter carrier, was approached from behind and robbed at about noon as he was putting mail into a "bank" of mailboxes at 240 Park Hill Avenue in Staten Island. The complainant chased the fleeing assailant, but gave up the chase after a short time and returned to the mailboxes. He then went to the security office at the Park Hill address to report the incident and, finally, returned to the Stapleton Post Office. At approximately 2:30 P.M., the complainant was "told [by police officers] that they had...
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