People v. McGovern

• Decision Date: 13 February 1990
• Citation: 551 N.Y.S.2d 321,158 A.D.2d 551
• Parties: The PEOPLE, etc., Respondent, v. Frank McGOVERN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 321

551 N.Y.S.2d 321

158 A.D.2d 551

The PEOPLE, etc., Respondent, v. Frank McGOVERN, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 13, 1990.

Steven R. Bernhard, Mineola, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ivan Vogel, of counsel), for respondent.

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

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered June 3, 1987, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On the night of September 18, 1985, on a street in Queens, the defendant, his codefendant Patrick Cruz, and three other men, brandishing knives and a screwdriver, robbed the complainant of approximately $200 and the complainant's friend of his wallet and some currency. About a week later, the complainant saw the defendant, the codefendant Cruz and another man on the street, and reported his sighting to a nearby police station. Police Officers Susan McConnell and James Stevenson drove around with the complainant, and after he identified the defendant and the codefendant Cruz, they were arrested.

On appeal, the defendant alleges that he was denied a fair trial by the trial court's instructions to the jury regarding his right not to testify; by certain remarks made by the prosecutor during his summation; and by the prosecutor's failure to timely inform defense counsel that defendant's brother had confessed to the crime. The defendant further contends that the trial court erred in not directing that the complainant testify at the Wade hearing; in refusing to permit the defendant's mother to testify as to her younger son's admission of guilt; and in giving an inadequate charge on identification testimony. In addition, the defendant claims that the verdict was against the weight of the evidence, and that his sentence was excessive. The defendant's contentions are without merit.

Although the trial judge erred in delivering an unrequested instruction to the jurors concerning the defendant's failure to testify, which instruction also exceeded the plain and simple language of CPL 300.10(2), the portion of the charge complained of was not so lengthy as to draw the jurors' attention to the issue, was "neutral in tone" and " 'consistent in substance with the intent of the statute' " (People v. Morris, 129 A.D.2d 591, 514 N.Y.S.2d 88, quoting from People v. Gonzalez, 72 A.D.2d 508, 421 N.Y.S.2d 3), and did not "imply that the [defendant's] failure to testify was merely a trial maneuver rather than a constitutional right" (People v. Ogle, 142 A.D.2d 608, 609, 530 N.Y.S.2d 263). In view of the foregoing, we find that there is no reasonable possibility that the error might have contributed to the defendant's conviction and that it was therefore harmless beyond a reasonable doubt (see, People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Morris, supra ).

The prosecutor's remarks on summation regarding the reliability of the complainant's identification testimony constituted a fair response to defense counsel's attack on the complainant's credibility during his summation.

In addition, contrary to the defendant's contention, the prosecution was not under a "constitutional" obligation to turn over to the defense, as Brady material, the information that the defendant's younger brother had confessed to the crime, since the defendant was already in possession of this information (People v. Banks, 130 A.D.2d 498, 515 N.Y.S.2d 81).

There is no automatic requirement that the complainant testify at a Wade hearing (People v. Monroe, 135 A.D.2d 741, 522 N.Y.S.2d 643), and the defendant in the instant case failed to carry his burden of proving that his identification by the complainant was improper or made under unduly suggestive circumstances, such that there would have been a need for the complainant's testimony (People v. Schipski, 130...