People v. Rodriguez
| Decision Date | 18 November 1991 |
| Citation | 177 A.D.2d 664,577 N.Y.S.2d 71 |
| Parties | The PEOPLE, etc., Respondent, v. David RODRIGUEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Schwartz and DiBlasi, Forest Hills (Joe DiBlasi, on the brief), for appellant.
Richard A. Brown, Dist. Atty., Kew Gardens (Merri Turk Lasky, of counsel), for respondent.
Before THOMPSON, J.P., and KUNZEMAN, EIBER and MILLER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered May 17, 1989, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress in-court identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the contention of the defendant, the hearing court properly denied suppression of an in-court identification, since the witness's prior acquaintance with the defendant provided a sufficient independent basis for the in-court identification (see, People v. Pittman, 159 A.D.2d 594, 552 N.Y.S.2d 452; People v. Kolomick, 132 A.D.2d 677, 518 N.Y.S.2d 46; People v. Levy, 123 A.D.2d 885, 507 N.Y.S.2d 481; People v. Griffin, 106 A.D.2d 402, 482 N.Y.S.2d 321).
Viewing the evidence in the light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Kennedy, 47 N.Y.2d 196, 417 N.Y.S.2d 452, 391 N.E.2d 288). Moreover, upon the exercise of our factual review power we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15[5].
The defendant was not deprived of a fair trial by the trial court's exclusion of all witnesses, including his father, from the courtroom. At no time was the general public denied access to the courtroom (see, People v. Felder, 39 A.D.2d 373, 334 N.Y.S.2d 992, affd., 32 N.Y.2d 747, 344 N.Y.S.2d 643, 297 N.E.2d 522; People v. Smith, 111 A.D.2d 883, 490 N.Y.S.2d 277).
Further, the admission of the decedent's dying declaration was proper. The dying declaration was properly linked to the defendant. Any deficiencies in the value of the dying declaration went to the weight rather than the admissibility of the statement (see, Richardson, Evidence § 307 [Prince, 10th ed]; People v. Liccione, 63 A.D.2d 305, 407 N.Y.S.2d 753, affd., 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333). Further, the trial court acted within its discretion in limiting the defense counsel's cross-examination of the People's witnesses regarding the victim's credibility (see, Richardson, Evidence §§ 317, 500, [Prince 10th ed]; Wharton, Criminal Evidence § 336 [14th ed].
A prosecution witness's invocation of the Fifth Amendment did not deprive the defendant of a fair trial since this witness only invoked the Fifth Amendment...
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