| People v Jordan |
| 2018 NY Slip Op 08956 [167 AD3d 1044] |
| December 26, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Jordan, Appellant. |
Gary E. Eisenberg, New City, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco andWilliam C. Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (BarbaraG. Zambelli, J.), rendered October 14, 2014, convicting him of robbery in the second degree,grand larceny in the fourth degree (two counts), petit larceny (two counts), criminal possession ofstolen property in the fifth degree, and resisting arrest, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The evidence at trial established that the defendant and two other individuals robbed theowner of a car wash at gunpoint. Following a jury trial, the defendant was convicted of robberyin the second degree, among other crimes.
The defendant correctly contends that the County Court erred in denying his request for ajury charge on cross-racial identification. In People v Boone (30 NY3d 521, 526 [2017]), the Court of Appealsheld that where, as here, "identification is an issue in a criminal case and the identifying witnessand defendant appear to be of different races, upon request, a party is entitled to a charge oncross-racial identification." Contrary to the People's contention, Boone appliesretroactively to cases pending on direct appeal (see People v Mitchell, 80 NY2d 519,527-528 [1992]; People v Pepper, 53 NY2d 213 [1981]; see e.g. People v Bradley, 160 AD3d760 [2018]).
Nevertheless, the County Court's failure to give a cross-racial identification chargeconstituted harmless error. At trial, the complainant identified the defendant as one of the threeperpetrators who robbed him inside the office of the car wash. The evidence at trial establishedthat shortly after the robbery, a police officer located the defendant and his accomplices, whomatched the descriptions of the perpetrators, in a car. The defendant and his accomplices then ledthe police on a high-speed car chase and a subsequent chase on foot. When the defendant wasapprehended following the foot chase, the police searched him for weapons, and the defendantstated, "they're not on me, the guns are in the car." The guns and proceeds of the robbery werefound in the car from which the defendant and his accomplices fled. Additionally, money that thecomplainant had withdrawn from the bank earlier that day, which was bound with blue bands,was recovered from a jacket the defendant had discarded as he was running from the police.Under these circumstances, the error in failing to give the charge on cross-racial identificationwas harmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the defendant would have been acquitted if not for the error (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Bradley, 160 AD3d at 762).
The defendant contends that the People were improperly allowed to elicit testimony from twowitnesses that bolstered each other's identifications of the defendant (see People vTrowbridge, 305 NY 471 [1953]). However, the defendant's contention is without merit.Neither witness testified to any prior out-of-court identification of the defendant (see People v Lassiter, 74 AD3d1094 [2010]; People v Brown, 140 AD2d 362 [1988]; People v Johnson, 137AD2d 719, 720-721 [1988]; People v Bonnet, 134 AD2d 436, 437 [1987]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Chambers, J.P., Austin, Roman and Iannacci, JJ., concur.