People v. Ortiz

• Decision Date: 06 August 1990
• Citation: 559 N.Y.S.2d 378,164 A.D.2d 872
• Parties: The PEOPLE, etc., Respondent, v. Richard ORTIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 378

559 N.Y.S.2d 378

164 A.D.2d 872

The PEOPLE, etc., Respondent, v. Richard ORTIZ, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 6, 1990.

Philip L. Weinstein, New York City (Joseph A. Zayas, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Amy Appelbaum and Barbara Thomashower, of counsel), for respondent.

Before KUNZEMAN, J.P., and KOOPER, SULLIVAN and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered November 30, 1987, convicting him of burglary in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, criminal mischief in the fourth degree and possession of burglar's tools, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's conviction arose out of an incident which occurred at about noon on April 24, 1987. Two eyewitnesses observed the defendant exiting 88 Vanderbilt Avenue carrying three large plastic bags and a black pouch. The defendant walked a half-block down Vanderbilt Avenue towards Myrtle Avenue and then entered a livery cab. One eyewitness entered his own car and followed the cab. When the livery cab stopped at a red light the defendant exited it. The eyewitness approached the cab and the cab driver pointed to the defendant and stated "that's the guy". The police apprehended the defendant and both eyewitnesses identified him.

The defendant claims that his constitutional right of confrontation was violated when the trial court permitted one eyewitness to give hearsay testimony as to what the cab driver said. This contention, however, was not preserved for appellate review (see, CPL 470.05[2]; People v. Williams, 46 N.Y.2d 1070, 416 N.Y.S.2d 792, 390 N.E.2d 299; People v. Caldwell, 147 A.D.2d 581, 537 N.Y.S.2d 874; People v. Keith, 136 A.D.2d 657, 523 N.Y.S.2d 611; People v. Cummings, 109 A.D.2d 748, 485 N.Y.S.2d 847) and review in the interest of justice is not warranted under the facts at bar.

The defendant also contends that the prosecutor improperly attempted to bolster the eyewitnesses' identifications by eliciting testimony from the defendant on cross-examination that he was arrested after the eyewitnesses had identified him. Since the defense counsel did not object to the challenged testimony on the specific ground that it constituted improper bolstering, the claimed...