People v. Staples

• Decision Date: 02 July 1984
• Citation: 103 A.D.2d 759,477 N.Y.S.2d 231
• Parties: The PEOPLE, etc., Respondent, v. Darren STAPLES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 231

477 N.Y.S.2d 231

103 A.D.2d 759

The PEOPLE, etc., Respondent, v. Darren STAPLES, Appellant.

Supreme Court, Appellate Division, Second Department.

July 2, 1984.

William E. Hellerstein, New York City (Donald W. Searles, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Peter A. Weinstein, Asst. Dist. Attys., Brooklyn, of counsel; Richard T. Faughnan on brief), for respondent.

Before BRACKEN, J.P., and WEINSTEIN, BROWN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 11, 1982, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

At trial, the victim made a positive identification of the defendant as the person who attempted to rob him at gunpoint on December 27, 1980. The defendant did not testify but presented four alibi witnesses.

Although the trial court's charge to the jury was improper in that it instructed the jury to most carefully scrutinize the evidence relating to the alibi without giving a like charge with respect to identification (see People v. Fludd, 68 A.D.2d 409, 417 N.Y.S.2d 283; People v. Reed, 83 A.D.2d 645, 441 N.Y.S.2d 518; People v. Costales, 87 A.D.2d 635, 448 N.Y.S.2d 223; People v. Cippola, 96 A.D.2d 1102, 467 N.Y.S.2d 72), the error was not preserved for appellate review and it was, in any event, harmless in view of the overwhelming proof of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). We note that the court did, in fact, give an "elaborate charge as to identification testimony must have impressed upon the jury the need of carefully scrutinizing that testimony too" (People v. Contes, 91 A.D.2d 562, 563, 457 N.Y.S.2d 45, affd. 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932). We have reviewed defendant's other contentions and find them to be without merit.