People v. Shepherd

• Decision Date: 30 September 1991
• Citation: 176 A.D.2d 369,574 N.Y.S.2d 596
• Parties: The PEOPLE, etc., Respondent, v. Horace SHEPHERD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 596

574 N.Y.S.2d 596

176 A.D.2d 369

The PEOPLE, etc., Respondent, v. Horace SHEPHERD, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 30, 1991.

Anthony C. Ginetto, New York City, for appellant.

Horace Shepherd, pro se.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Ann Bordley and Nancy F. Talcott, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, ROSENBLATT and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered October 17, 1988, convicting him of robbery in the first degree (two counts), 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 identification testimony.

ORDERED that the judgment is affirmed.

The evidence at trial establishes that at approximately 3:00 A.M. on May 31, 1987, the defendant, his codefendant Chris Guthrie, and an unapprehended accomplice held two men at gunpoint in front of a Brooklyn nightclub, and took their automobile and jewelry. On the afternoon of June 3, 1987, following an attempt by a police officer to stop the stolen vehicle for a traffic violation in Queens, the defendant and his codefendant, who were backseat passengers in the stolen car, were apprehended after a high-speed chase and a flight on foot. On June 6th, one of the victims identified the defendant in a lineup and the codefendant in a separate lineup.

On appeal, the defendant contends that it was error for the court to have admitted evidence of the defendant's flight from the stolen vehicle three days after the crime; and he further contends that certain remarks made by the court and by the prosecutor on summation, coupled with a deficiency in the court's charge, deprived him of his right to a fair trial. He also argues in his supplemental pro se brief that the court should not have admitted evidence of his lineup identification.

The defendant's contentions are without merit.

The trial court properly admitted evidence of the defendant's flight because it was circumstantial evidence of his consciousness of guilt. As this court stated in evaluating this same issue on the codefendant Guthrie's appeal: "flight and consciousness of guilt are factors which, although of slight probative value, are to be considered by the trier of fact, even where the People have not excluded every other possible motivation for the defendant's flight" (People v. Guthrie, 157 A.D.2d 668, 670, 549 N.Y.S.2d 770, citing People v. Yazum, 13 N.Y.2d 302, 246 N.Y.S.2d 626, 196 N.E.2d 263). The mere fact that the flight took place three days after the robbery, rather than immediately following the crime, does not necessitate its exclusion (People v. DeGina, 140 A.D.2d 537, 528 N.Y.S.2d 620, revd. on other grounds, 72 N.Y.2d 768, 537 N.Y.S.2d 8, 533 N.E.2d 1037).

The defendant's claim on appeal that the court did not properly charge the jury on the limited value of the evidence of flight is unpreserved for appellate review since the defendant did not object to the charge on this ground at trial (CPL 470.05[2]; People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4). In any event, the record reveals that the court painstakingly instructed the...