People v. Mayers

• Decision Date: 12 March 1984
• Citation: 100 A.D.2d 558,473 N.Y.S.2d 263
• Parties: The PEOPLE, etc., Respondent, v. Martin MAYERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 263

473 N.Y.S.2d 263

100 A.D.2d 558

The PEOPLE, etc., Respondent, v. Martin MAYERS, Appellant.

Supreme Court, Appellate Division Second Department.

March 12, 1984.

Martin S. Dorfman and Lawrence F. Spirn, Woodbury, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ann Miele, Asst. Dist. Atty., Kew Gardens, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, O'CONNOR and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 2, 1982, convicting him of robbery in the first degree, burglary in the second degree, and criminal use of a firearm in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of defendant's pretrial motion which sought to suppress certain identification testimony.

Judgment affirmed. The case is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd. 5).

Defendant stands convicted of the gunpoint robbery of two senior citizens. On this appeal, he claims that those branches of his pretrial motion which sought to suppress certain identification testimony were improperly denied, that one of the complainants' identification testimony was impermissibly bolstered, that the arresting officer was erroneously permitted to testify concerning his postarrest silence, that he is entitled to a new trial because the People withheld certain evidence from the defense, and that his sentence is excessive. We affirm and discuss the contentions in seriatim.

The showup, which occurred shortly after the robbery and not far from the scene of the crime, was an appropriate measure to secure a prompt and reliable identification of the perpetrators (People v. Love, 57 N.Y.2d 1023, 457 N.Y.S.2d 474, 443 N.E.2d 948; People v. Soto, 87 A.D.2d 618, 448 N.Y.S.2d 25). Defendant's rights were not violated by compelling him to don a black turtleneck sweater that he allegedly wore at the time of the robbery (see People v. Cwikla, 46 N.Y.2d 434, 443-444, 414 N.Y.S.2d 102, 386 N.E.2d 1070; United States v. Gaines, 450 F.2d 186, 195, cert. den. 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 801). In any event, there was an independent basis for the in-court identification as the complainant who made that identification was able to observe the defendant in her well-lighted kitchen and in her basement (see, e.g., People v. Johnson, 79 A.D.2d 617, 433 N.Y.S.2d 477).

The bolstering claim rests upon the fact that one of the police officers, during his testimony, volunteered that the "complainants were brought to the scene and made an identification at the scene". Defense counsel, however, could not hear the statement, which was read back at a side bar, and the prosecutor, who did not elicit the statement, did not pursue it and did not mention it in summation. Consequently, any error arising from this isolated comment was harmless (see People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478).

We similarly find no merit to the claim that impermissible use was made of defendant's postarrest silence (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91; People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933). First, the issue was not preserved for appellate review. Defense counsel's belated objection was sustained and he did not seek a curative instruction or a mistrial, thus waiving any error (see, e.g., People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276; ...