People v. Rawlings

• Decision Date: 14 November 1988
• Citation: 533 N.Y.S.2d 1001,144 A.D.2d 500
• Parties: The PEOPLE, etc., Respondent, v. Bruce RAWLINGS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1001

533 N.Y.S.2d 1001

144 A.D.2d 500

The PEOPLE, etc., Respondent, v.Bruce RAWLINGS, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 14, 1988.

Jeffrey Earl Levine, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and Carol Teague Schwartzkopf, of counsel), for respondent.

Before SPATT, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Kramer, J.), rendered September 6, 1983, convicting him of rape in the first degree (two counts), robbery in the first degree (two counts), sexual abuse in the first degree, robbery in the second degree and criminal use of a firearm in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contentions, we are convinced that he was not deprived of a fair trial.The testimony of an Assistant District Attorney who related that the robbery victim had previously identified the defendant at a corporeal lineup was not improperly received since the victim was unable to identify the defendant at trial (CPL 60.25;see, People v. Nival, 33 N.Y.2d 391, 353 N.Y.S.2d 409, 308 N.E.2d 883, cert. denied417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208).The introduction of the photograph of the lineup and the testimony of the Assistant District Attorney as to the makeup of the lineup did not impermissibly bolster the identification as this evidence merely enabled the jury to best assess whether the lineup was generally fair, or as contended by the defendant at trial, unduly suggestive (cf., People v. Sims, 127 A.D.2d 712, 713-714, 511 N.Y.S.2d 906;People v. Mojica, 122 A.D.2d 81, 504 N.Y.S.2d 685, lv. denied68 N.Y.2d 1002, 510 N.Y.S.2d 1035, 503 N.E.2d 132).

Nor was the defendant deprived of a fair trial by the statements of the prosecutor during summation.We note that many of the defendant's arguments raised on appeal were not objected to at trial and hence any error of law with respect thereto was unpreserved for appellate review (CPL 470.05[2];see, People v. Bowen, 50 N.Y.2d 915, 431 N.Y.S.2d 449, 409 N.E.2d 924).In any event, the prosecutor's statements in toto were not improper as his alleged "vouching" for the People's witnesses was a fair response to the defense summation which impugned the credibility of these witnesses (see, People v. Crawford, 130 A.D.2d 678, 515 N.Y.S.2d 604).The prosecutor's other statements were similarly proper under the circumstances (see, People v. Koleskor, 131 A.D.2d 879, 517 N.Y.S.2d 236, lv. denied70 N.Y.2d 801, 522 N.Y.S.2d 118, 516 N.E.2d 1231;People v. Turner, 120 A.D.2d 629, 502 N.Y.S.2d 91, lv. denied68 N.Y.2d 673, ...