| People v Nesbitt |
| 2010 NY Slip Op 07568 [77 AD3d 854] |
| October 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kareem Nesbitt, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered June 18, 2008, convicting him of robbery in the first degree (four counts) and robbery inthe second degree (five counts), upon a jury verdict, and sentencing him to determinate terms ofimprisonment of 20 years on each of the convictions of robbery in the first degree under counts14, 15, and 24 of the indictment, 10 years on the conviction of robbery in the first degree undercount one of the indictment, and five years on each of the convictions of robbery in the seconddegree under counts 3, 10, 16, 17, and 25 of the indictment, with all sentences to runconcurrently.
Ordered that the judgment is modified, on the law, the facts, and as a matter of discretion inthe interest of justice, (1) by vacating the conviction of robbery in the first degree as charged incount one of the indictment and the convictions of robbery in the second degree as charged incounts 3 and 10 of the indictment, and the sentences imposed thereon, and (2) by reducing theterms of imprisonment imposed upon the convictions of robbery in the first degree as charged incounts 14, 15, and 24 from determinate terms of imprisonment of 20 years to determinate termsof imprisonment of 10 years, with those sentences to run concurrently with one another andconcurrently with the remaining sentences; as so modified, the judgment is affirmed, and thematter is remitted to the Supreme Court, Kings County, for a new trial on count one of theindictment charging robbery in the first degree and counts 3 and 10 of the indictment chargingrobbery in the second degree.
The defendant was charged with participating in three separate robberies which allegedlyoccurred on August 7, August 10, and August 14, 2006. The defendant claims that he wasdeprived of a fair trial when the People were permitted to elicit testimony from a police detectivewith respect to the August 7, 2006, robbery to improperly bolster an eyewitness's testimony.Although the defendant failed to preserve this contention for appellate review, we review it in theexercise of our interest of justice jurisdiction (see CPL 470.15). The detective testifiedthat one of the complainants in the first robbery, Mohammed Islam, viewed a lineup, that Islamidentified someone at the lineup, and that, immediately thereafter, the detective arrested thedefendant. Under the circumstances of this case, we agree that this testimony impermissiblybolstered the identification testimony (see People v Trowbridge, 305 NY 471 [1953]; People v Samuels, 22 AD3d 507,509 [2005]; People v Fields, 309 AD2d 945 [2003]; People v Bacenet, 297 AD2d[*2]817, 818 [2002]).
The defendant also contends, with respect to the August 7, 2006, robbery, that the Peopleimproperly elicited testimony as to a lineup identification made by the complainant Modi Uddin,who did not identify the defendant at trial. Although this issue also has not been preserved forappellate review, we review it in the exercise of our interest of justice jurisdiction (seeCPL 470.15). The defendant correctly asserts that the People failed to lay the properfoundation for the testimony as to Uddin's viewing of the lineup (see CPL 60.25;People v Quevas, 81 NY2d 41, 45-46 [1993]).
Furthermore, under the circumstances of this case, the above errors were not harmless. Theevidence of the defendant's guilt in connection with the August 7, 2006, robbery was less thanoverwhelming, and it cannot be said that there was no significant probability that these errorscontributed to his convictions (see People v Caserta, 19 NY2d 18, 21 [1966]; see alsoPeople v Fields, 309 AD2d at 945-946; People v Bacenet, 297 AD2d at 818).
The defendant further contends, in connection with the August 7, 2006, robbery, that he wasdenied his constitutional right to confront the witnesses against him based on a detective'stestimony as to conversations between the police and an alleged accomplice regarding thatrobbery, as well as the detective's testimony as to that accomplice's viewing of a photograph(see Davis v Washington, 547 US 813, 821 [2006]; Crawford v Washington, 541US 36, 42 [2004]; People vNieves-Andino, 9 NY3d 12, 14 [2007]; People v Bradley, 8 NY3d 124, 126 [2006]). Although this issue isunpreserved for appellate review, we review it in the exercise of our interest of justicejurisdiction (see CPL 470.15). The challenged testimony was improper, as it directlyimplied that the alleged accomplice, who did not testify at trial, identified the defendant as theperpetrator (see People v Jones, 305 AD2d 698 [2003]; People v James, 289AD2d 506 [2001]; see also People vFairweather, 69 AD3d 876 [2010]; People v Berry, 49 AD3d 888, 888-889 [2008]). Again, theevidence of the defendant's guilt of the August 7, 2006, robbery was less than overwhelming, andit cannot be said that there was no reasonable possibility that this alleged error might havecontributed to the defendant's convictions. Thus, the error was not harmless beyond a reasonabledoubt (see People v Crimmins, 36 NY2d 230, 237 [1975]; see also People v Douglas, 4 NY3d777, 779 [2005]; People vRush, 44 AD3d 799, 800 [2007]).
Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a newtrial on count 1 of the indictment charging robbery in the first degree, and on counts 3 and 10 ofthe indictment charging robbery in the second degree.
The defendant also contends that the People improperly elicited bolstering testimony withrespect to the remaining charged robberies, which occurred on August 10 and August 14, 2006.The defendant failed to preserve these contentions for appellate review (see People v Hospedales, 71 AD3d916 [2010]; People v Wilson, 295 AD2d 545, 546 [2002]). In any event, thechallenged testimony did not impermissibly bolster the identification evidence (see People v John, 51 AD3d 819,820 [2008]; People v Santiago, 265 AD2d 351, 352 [1999]; People v Higgins,216 AD2d 487 [1995]).
Under the circumstances of this case, the Supreme Court did not err in denying defensecounsel's request to present evidence pertaining to a police search of the defendant's homeconducted 10 days after the last charged robbery (see People v Aska, 91 NY2d 979, 981[1998]; see also People v Paixao, 23AD3d 677 [2005]).
The defendant was not deprived of the effective assistance of counsel, as defense counselprovided meaningful representation (see People v Benevento, 91 NY2d 708 [1998];People v Baldi, 54 NY2d 137 [1981]).
Under the circumstances of this case, the sentence imposed was excessive to the extentindicated herein. Mastro, J.P., Covello, Dickerson and Roman, JJ., concur.