People v. Polidore

• Decision Date: 23 March 1992
• Citation: 181 A.D.2d 835,581 N.Y.S.2d 827
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Respondent, v. Harry POLIDORE, Appellant.

Page 827

581 N.Y.S.2d 827

181 A.D.2d 835

The PEOPLE, etc., Respondent, v.Harry POLIDORE, Appellant.

Supreme Court, Appellate Division Second Department.

March 23, 1992.

Philip L. Weinstein, New York City(Linda Poust, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Jodi L. Mandel and Vincent A. Albunio, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, MILLER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Goldstein, J.), rendered October 16, 1989, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The complaining witness was robbed at gunpoint on April 5, 1989, at approximately 4:00 P.M.Shortly after the robbery, the complaining witness informed two police officers of what had happened.While canvassing the area with these officers, the witness spotted the robber, who was standing with a girl in front of 1630 Pacific Street.The officers chased the alleged robber into this building while the witness remained in the officers' car.The alleged robber managed to elude the police and was not arrested until almost three weeks later.

One of the two police officers testified at trial that after having entered 1630 Pacific Street, and after having spoken to one of its occupants, he proceeded to apartment 2A.This officer also testified that he later spoke to the complaining witness again and that she identified the girl with whom the alleged robber had been seen.This officer also testified that after speaking to the girl with whom the defendant had been seen, he returned to apartment 2A.A search of this apartment was fruitless.

The second police officer testified that he continued the investigation on April 17 and on April 25.He testified that the suspect for whom he was searching was named Harry Polidore.The trial court advised the jury that this testimony was not to be considered as evidence that Harry Polidore(i.e. the defendant) was the robber, but merely as proof that Harry Polidore was being sought by the police.This officer testified that the defendant was arrested on April 25, 1989, 20 days after the robbery.

At trial, the complaining witness identified the defendant as the perpetrator of the robbery.The defendant was convicted of robbery in the first degree and now appeals.

On appeal, the defendant argues that the testimony given by the two police officers described above implicitly bolstered the in-court identification made by the complaining witness (citingPeople v. Holt, 67 N.Y.2d 819, 821, 501 N.Y.S.2d 641, 492 N.E.2d 769;People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841).He argues that the jury might have inferred that the two uncalled witnesses (the occupant of 1630 Pacific Street and the girl who had been seen with the defendant) who had directed the police to apartment 2A had done so because they knew that the defendant was the perpetrator.The defendant also complains that the jury would have inferred that certain uncalled witnesses had named Harry Polidore as the perpetrator.He argues that this not only constituted Trowbridge error (People v. Trowbridge, supra ), but that it also deprived him of his constitutional right to confront the witnesses against him (U.S. Const., 6th, 14th Amendments;N.Y. Const., art. I, § 6;see generally, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347;California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489).

This argument, which we need consider only to the limited extent that it has been properly preserved for appellate review as a question of law (CPL 470.05[2];see, e.g., People v. Alston, 163 A.D.2d 398, 558 N.Y.S.2d 123) does not furnish a basis for reversal.First of all, the rule of law to be derived from People v. Holt(supra) is inapplicable.In Holtthe Court of Appeals held that it was error for the trial court to permit a police officer to testify that after having spoken to an eyewitness, he(the officer) arrested the defendant.This sort of testimony was viewed as an implicit bolstering of the same eyewitness' in-court identification testimony, in violation of the rule of People v. Trowbridge(supra)(see also, People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478;People v. Veal, 158 A.D.2d 633, 551 N.Y.S.2d 602;People v. Bailey, 155 A.D.2d 467, 547 N.Y.S.2d 646;People v. Hart, 140 A.D.2d 711;People v. Perez, 127 A.D.2d 707, 511 N.Y.S.2d 687;People v. Vasquez, 120 A.D.2d 757, 502 N.Y.S.2d 282).

The present case is distinguishable, most obviously, in that there was no bolstering of the complaining witness's in-court identification by either implicit or explicit reference to any out-of-court identification made by her, or for that matter, by anyone else.In the present case, there is no evidence that either of the two civilians who led the police to apartment 2A did so after having actually identified the defendant as the robber.It is not demonstrated, in other words, that either one of these civilians was, in fact, a witness to the crime.

Thus, unlike the testimony held to be improper in People v. Holt(67...