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People v. Thomas

December 29, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DANIEL THOMAS, DEFENDANT-APPELLANT.



Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered March 27, 2007, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 8 years, affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Nardelli, Catterson, DeGrasse, JJ.

3032/06

Evidence of guilt was overwhelming in this case. The arresting officer testified that defendant and his accomplice were both stopped at 103rd Street and Park Avenue. While the command log, which was completed by a desk officer not involved in the arrest, indicated that the two individuals had been arrested a block apart, the arresting officer testified, both on direct and on rebuttal, that they were arrested at the same location, after having been observed running together. At the time they were stopped, defendant's accomplice was in possession of a cell phone and some money which had just been stolen in a robbery a block away. The victim later positively identified defendant and his accomplice as the two individuals who had stolen the cell phone and the money from him.

Defendant was tried by himself. At the trial, the court permitted the victim to identify defendant's accomplice in a photograph. As a general rule, identification by the victim of an accomplice who is not on trial is not relevant to any material issue, inasmuch as the identification of one individual is not probative of the accuracy of the identification of another (see generally People v Rosario, 127 AD2d 209, 215 [1987], lv denied 70 NY2d 655 [1987]). In this case, however, in view of the overwhelming evidence of guilt, as discussed above, any error was harmless (People v Jenkins, 305 AD2d 287 [2003], lv denied 100 NY2d 621 [2003]).

More to the point, only the victim testified as to his identification of defendant. The court prohibited the People from presenting testimony by the police officers confirming that the victim had made an identification. This is not one of those cases where the bolstering error is compounded because a third party, such as a police officer or a companion, corroborated the fact that the victim identified a co-defendant on a prior occasion (see e.g. People v Monroe, 40 NY2d 1096, 1098 [1977]; People v Samuels, 22 AD3d 507, 508-509 [2005]).

Defendant's challenge to the victim's in-court identification of defendant is also unavailing. At an independent source hearing, the People proved by clear and convincing evidence that the identification was based upon a source that was independent of a showup identification, which the court suppressed on Fourth Amendment grounds (People v Young, 7 NY3d 40, 44 [2006]; People v Williams, 222 AD2d 149, 153 [1996], lv denied 88 NY2d 1072 [1996]). During the robbery the victim had ample time to observe defendant's face. The record indicates that there was sufficient lighting at the location where the robbery occurred; the victim displayed a measured calm as he requested that the robbers take only his money and not his cell phone; and before the showup identification he had provided a description that described the robbers sufficiently enough for the police to surmise that the men already in custody were the perpetrators.

We perceive no basis for reducing sentence. All concur except Catterson, J. who dissents in a memorandum as follows: CATTERSON, J. (dissenting)

I must respectfully dissent because, in my opinion, the People improperly bolstered the in-court identification of the defendant. Because they acknowledge such improper bolstering on appeal, and since the defendant clearly preserved the issue for appellate review, I would reverse and remand for a new trial.

This appeal arises out of the defendant's conviction, after a jury trial, of robbery in the second degree. The defendant argues that without the bolstered identification testimony, the only evidence against him was police testimony that he was running in the street in the early hours of the morning with an alleged accomplice who was found to have a stolen cell phone on his person. Hence, the defendant asserts the admission of the bolstered identification testimony is reversible error.

Testimony at trial adduced the following: in the early hours of the morning of June 10, 2006, two plainclothes police officers traveling northbound along Park Avenue saw two men, the defendant and his alleged accomplice Victor Cruz, running. They turned the car around and signaled to the two men to stop to speak to them. One of the police officers patted down the defendant and asked for identification. While the majority points to the testimony of the arresting officer that the two men were arrested "at the same location," this was disputed by evidence of the command log, completed at the precinct, which indicated the two men were stopped a block apart.

In any event, after the stop, the defendant handed over identification and, apparently inadvertently, a credit card which did not bear his name but which the defendant said belonged to a family member. Both the defendant and Cruz were then handcuffed and taken to the 23rd precinct where they were searched. A cell phone and some money were found on Cruz, while the defendant's pockets yielded a small glassine of crack cocaine and two dollars.

While the defendant and Cruz were being held, an officer from the precinct left in response to a report of a robbery on 103rd Street. The complainant reported that two men, "one black and one Hispanic," had "roughed him up" and taken his cell phone. At the time, the complainant could not provide any more of a description but the officer remembered seeing the cell phone among items taken from Cruz at the precinct and arranged for the defendant and Cruz to be brought to 103rd Street for a show-up identification. The defendant and Cruz were made to stand behind the patrol car so that only their ...


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