People v. Phillips
Citation | 427 N.Y.S.2d 425,75 A.D.2d 735 |
Parties | The PEOPLE of the State of New York, Respondent, v. Reginald E. PHILLIPS, Defendant-Appellant. |
Decision Date | 06 May 1980 |
Court | New York Supreme Court — Appellate Division |
D. J. Siewert, New York City, for respondent.
Z. Hankovszky, New York City, for defendant-appellant.
Before MURPHY, P. J., and KUPFERMAN, SULLIVAN, LUPIANO and CARRO, JJ.
Judgment, Supreme Court, New York County, rendered October 13, 1977, convicting defendant, after jury trial, of robbery in the first degree, affirmed.
To the factual delineation ably set forth in the dissent, we add the following observations: The lighting in the elevators where complainant, Maria Figueroa, was robbed was good at the time of the incident; complainant, after the incident, realized that she had seen the defendant in the neighborhood; complainant resisted the defendant and took part in the subsequent chase of defendant; two weeks later, complainant recognized defendant, who was approximately twelve feet away and wearing the same windbreaker and glasses as at the time of the crime; she immediately notified the police, which action resulted in the prompt arrest of defendant.
Contrary to the dissenters' view, the testimony of the complainant, Maria Figueroa, was not suspect as to its accuracy and reliability. Ms. Figueroa had ample opportunity to observe the defendant. First, while in a well-lit elevator, the defendant at close range struck her in the face and ran off with her purse. She thereafter pursued the robber down ten flights of stairs and into an adjoining building. During this period of time it cannot be said that complainant did not have sufficient opportunity to carefully observe the defendant. Moreover, and contrary to the defendant's claim that complainant was "shaky" when she identified the defendant on the street two weeks later, Ms. Figueroa, on her own initiative, recognized the defendant and immediately obtained police help. This spontaneous encounter involved no suggestive influence whatsoever and is wholly credible. Although complainant's description to the officer and detective, as recorded by them, was not totally inclusive in that it failed to state the defendant wore glasses and had a goatee, the other characteristics furnished by complainant at the time clearly matched those of the defendant. In addition, complainant at trial unequivocally stated that she had in fact told the officer that the defendant had a goatee and glasses, and it was for the jury to believe or disbelieve whether the officer and detective in error failed to record such fact. Although the other victim, Daren Johnson, was not able to identify the defendant, this fact is irrelevant since the defendant's accomplice had ordered Johnson to keep his head down during the course of the robbery. Further corroborative evidence of the defendant's guilt is the fact that the defendant lived in a building adjacent to complainant's and the man who complainant and the others chased into the adjacent building never emerged from that building. This fact tends to suggest that the robber lived in the adjacent building. Although complainant was not wearing her glasses at the time of the robbery, she explained at trial that the glasses were only necessary for reading, and that her failure to wear glasses at the time of the robbery in no way impeded her ability to identify the defendant.
The dissenters conclude that defense witness, Olga Benitez, was improperly impeached when the trial court allowed the prosecutor to ask her whether she had reported to the authorities her alleged observation that the police had the wrong person. The issue of whether the People may properly cross-examine a defense witness with regard to the failure of the witness previously to communicate exculpatory information has been frequently litigated. It is recognized that such witness may properly be cross-examined as to when and to whom the witness first disclosed the exculpatory information, as such circumstances obviously bear on the credibility of the witness' testimony (See, People v. Colarco, 68 A.D.2d 430, 417 N.Y.S.2d 681 (1st Dept. 1979)). With respect to the questions posed on cross-examination to defense witness Benitez, it is clear that such questions, at least on their face, did not suggest that the defense witness had a duty to report to the police. Indeed, in summation, the prosecutor did not argue that the defense witness had an obligation to come forward, but argued that it was incredible for her not to. These are obviously two distinct things. Specifically, the prosecutor argued as follows:
The passing reference to the District Attorney as one among the many to whom defense witness could have communicated the exculpatory information does not serve of itself to convey to the jury the impermissible suggestion that there is a duty on the part of the defense witness to report to the prosecution rather than to the defense or anyone else.
There is no objective support in the record for the dissenters' view that the jury in the instant matter was composed of "impressionable" individuals.
(People v. Johnson, 61 A.D.2d 923, 927, 403 N.Y.S.2d 11, 15 (1st Dept. 1978)).
(People v. Robertson, 61 A.D.2d 600, 610, 403 N.Y.S.2d 234, 240 (1st Dept. 1978)).
On the afternoon of May 3, 1976, Maria Figueroa entered the elevator in her building at 210 East 102nd Street. Three men and one teenager entered the elevator with her. One man exited at the fourth floor. As the elevator then proceeded toward the tenth floor, a second man, alleged to be defendant Phillips, held a knife to Figueroa's throat. Defendant's accomplice, an unidentified third man, also held a knife to the throat of a teenager named Daren Johnson. The two robbers took Figueroa's pocketbook and exited on the tenth floor. Figueroa pursued the two robbers down...
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People v. Albright
...if a proper foundation has been laid (People v. Dawson, 50 N.Y.2d 311, 321, 428 N.Y.S.2d 914, 406 N.E.2d 771; People v. Phillips, 75 A.D.2d 735, 736-737, 427 N.Y.S.2d 425). Here, the cross-examination was properly designed to suggest that Chandler's testimony was recently fabricated. Althou......