People v. Washington
| Decision Date | 07 October 1991 |
| Citation | 574 N.Y.S.2d 1009,176 A.D.2d 769 |
| Parties | The PEOPLE, etc., Respondent, v. Clarence WASHINGTON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Joanne Legano, of counsel), for appellant and appellant pro se. Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Carol Teague Schwartzkopf and Hilda Mortensen-Hoyt, of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered March 28, 1989, convicting him of murder in the second degree, attempted murder in the second degree, reckless endangerment in the first 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 identification testimony. ORDERED that the judgment is affirmed. The defendant argues that the court committed error when it failed to give an alibi charge. However, this issue is not preserved for appellate review, as defense counsel neither requested such a charge nor objected to the lack thereof (see, People v. Asquino, 128 A.D.2d 792, 513 N.Y.S.2d 490). We decline to reach this issue in the exercise of our interest of justice jurisdiction since the focus of the asserted defense in this case was not an alibi but rather misidentification, and "the trial court's instructions, when taken as a whole, properly instructed the jury that the People bore the burden of proof as to the complicity of the defendant in the charged crimes" (People v. Asquino, supra, 792-793, 513 N.Y.S.2d 490; People v. Howard, 153 A.D.2d 903, 545 N.Y.S.2d 394). In his supplemental pro se brief, the defendant further argues that a detective who testified for the People improperly bolstered the identification testimony of two eyewitnesses to the crime (see, People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841; People v. Veal, 158 A.D.2d 633, 551 N.Y.S.2d 602). However, this claim of improper bolstering is not preserved for appellate review, since no objection was raised to the allegedly improper testimony (see, CPL 470.05[2]; People v. Brown, 161 A.D.2d 778, 556 N.Y.S.2d 661). In any event, any error in this regard was harmless in view of the overwhelming evidence of guilt, including "clear and strong proof of the defendant's identity as the perpetrator" (People v. Ray, 127 A.D.2d 859, 512...
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...for appellate review, because no objection was raised to the allegedly improper testimony (see, CPL 470.05[2]; People v. Washington, 176 A.D.2d 769, 574 N.Y.S.2d 1009). In any event, any error in this regard which may have occurred is rendered harmless by the strength of the complainant's i......
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