People v. Felix

Sep 22, 1994
Versions:207 A.D.2d 729
616 N.Y.S.2d 614
1994 N.Y. App. Div. LEXIS 8979

—Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered May 5, 1989, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 3 Vz to 10 Vi years, unanimously affirmed.

Defendant’s absence from two voir dire sidebar conferences with prospective jurors provides no basis for reversal of his conviction since People v Sloan (79 NY2d 386) applies prospectively only (People v Sprowal, 84 NY2d 113).

Defendant’s argument that the People improperly bolstered the complainants’ identification testimony is unpreserved for appellate review as a matter of law, and we decline to review in the interest of justice (CPL 470.05 [2]). If we were to review it, we would find that while it was error to admit the evidence of the complainants’ pretrial identification of defendant’s accomplice (People v Rosario, 127 AD2d 209), the error was harmless.

Defendant also failed to preserve his argument that the court’s identification charge was inadequate (CPL 470.05 [2]). In any event, if we were to review the charge in the interest of justice, we would find that it was proper, the jury having been appropriately instructed on evaluating the credibility of witnesses and that the People had to prove identification beyond a reasonable doubt (People v Whalen, 59 NY2d 273, 279). Concur—Rosenberger, J. P., Ellerin, Ross, Rubin and Williams, JJ.