People v. Phillips , 75 A.D.2d 735 ( 1980 )

Judgment, Supreme Court, New York County, rendered October 13, 1977, convicting defendant, after jury trial, of robbery in the first degree, affirmed. To the factual delineation ably set forth in the dissent, we add the following observations: The lighting in the elevators where complainant, Maria Figueroa, was robbed was good at the time of the incident; complainant, after the incident, realized that she had seen the defendant in the neighborhood; complainant resisted the defendant and took part in the subsequent chase of defendant; two weeks later, complainant recognized defendant, who was approximately 12 feet away and wearing the same windbreaker and glasses as at the time of the crime; she immediately notified the police, which action resulted in the prompt arrest of defendant. Contrary to the dissenters’ view, the testimony of the complainant, Maria Figueroa, was not suspect as to its accuracy and reliability. Ms. Figueroa had ample opportunity to observe the defendant. First, while in a well-lit elevator, the defendant at close range struck her in the face and ran off with her purse. She thereafter pursued the robber down 10 flights of stairs and into an adjoining building. During this period of time it cannot be said that complainant did not have sufficient opportunity to carefully observe the defendant. Moreover, and contrary to the defendant’s claim that complainant was "shaky” when she identified the defendant on the street two weeks later, Ms. Figueroa, on her own initiative, recognized the defendant and immediately obtained police help. This spontaneous encounter involved no suggestive influence whatsoever and is wholly credible. Although complainant’s description to the officer and detective, as recorded by them, was not totally inclusive in that it failed to state the defendant wore glasses and had a goatee, the other characteristics furnished by complainant at the time clearly matched those of the defendant. In addition, complainant at trial unequivocally stated that she had in fact told the officer that the defendant had a goatee and glasses, and it was for the jury to believe or disbelieve whether the officer and detective in error failed to record such fact. Although the other victim, Daren Johnson, was not able to identify the defendant, this fact is irrelevant since the defendant’s accomplice had ordered Johnson to keep his head down during the course of the robbery. Further corroborative evidence of the defendant’s guilt is the fact that the defendant lived in a building adjacent to complainants and the man who complainant and the others chased into the adjacent building never emerged from that building. This fact tends to suggest that the robber lived in the adjacent building. Although complainant was not wearing her glasses at the time of the robbery, she explained at trial that the glasses were only necessary for reading, and that her failure to wear glasses at the time of the robbery in no way impeded her ability to identify the defendant. The dissenters conclude that defense witness, Olga Benitez, was improperly impeached when the trial court allowed the prosecutor to ask her whether she had reported to the authorities her alleged observation that the police had the wrong person. The issue of whether the People may properly cross-examine a defense witness with regard to the failure of the witness previously to communicate exculpatory information has been frequently litigated. It is recognized that such witness may properly be cross-examined as to when and to whom the witness first disclosed the exculpatory information, as such circumstances obviously bear on the credibility of the witness’ testimony (see People v Colarco, 68 AD2d 430). With respect to the questions posed on cross-examination to defense witness Benitez, it is clear that such questions, at least on their face, did not suggest that the defense witness had a duty to report to the police. Indeed, in summation, the prosecutor did not argue that the defense witness had an obligation to come forward, but argued that it was incredible for her not to. These are obviously two distinct things. Specifically, the prosecutor argued as follows: "Here is somebody she knows who is arrested for a crime and she claims that she knows that he didn’t do it. He wasn’t the man. Never told anybody. Never told anybody and that is incredible. Can you believe that that woman sat with that information for a year, over a year, and never told the District Attorney about it?” The passing reference to the District Attorney as one among the many to whom defense witness could have communicated the exculpatory information does not serve of itself to convey to the jury the impermissible suggestion that there is a duty on the part of the defense witness to report to the prosecution rather than to the defense or anyone else. There is no objective support in the record for the dissenters’ view that the jury in the instant matter was composed of "impressionable” individuals. "Trial by jury is an integral part of our system of justice. Its advocates, despite the attacks on the jury system, point with justifiable pride that this right to a trial by one’s peers stands as a safeguard against tyranny and possible abuse of power by the State. Accordingly, we must give credit to the common sense and reason of our fellow man who sits as a juror in fulfillment of the responsibilities which our system of justice bestows on him” (People v Johnson, 61 AD2d 923, 927). "Relevant to the demarcation that separates the functions of a jury from those of an appellate court is the following observation in People v Cohen (223 NY 406, 422-423): Viewing the evidence as a whole; making all allowance; using all proper caution, we believe that it presented a question which could only be solved by a jury. The responsibility for the result rests with it. By this statement we do not intend to criticize its action. The jurors saw the witnesses. The claims of the People and the defendant were presented to them with force and ability. Evidently they considered the case with care. Better than a court which reviews but the printed record are they fitted to pass upon the guilt or innocence of the accused.’ Further, 'if there is a fair conflict in the evidence or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption, [citation.] If, in the judgment of this court, there was a rational doubt of the guilt of the defendant, it would not be a sufficient ground for reversal. Under our system of criminal jurisprudence, it becomes the exclusive province of the jury to determine whether the evidence pointing to the guilt of the accused is so lacking in convincing force as to leave an intelligent and discriminating mind in doubt as to the truth of the charge contained in the indictment. When the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen from a contemplation of the evidence, the prisoner has had the full benefit of the rule of law which protects him from punishment, unless his crime is established beyond a reasonable doubt, and the question is not open for review in this court, unless the case is so weak that the verdict should be set aside because against the weight of evidence, or for other sufficient cause * * *’ (People v Taylor, 138 NY 398, 405-406)” (People v Robertson, 61 AD2d 600, 610). Concur—Kupferman, Sullivan and Lupiano, JJ.