People v. Griffin

May 7, 1991
Versions:173 A.D.2d 216
569 N.Y.S.2d 97
1991 N.Y. App. Div. LEXIS 5531

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered June 23, 1989, convicting defendant after jury trial of robbery in the first degree and sentencing him to two-and-a-half to seven-and-a-half years imprisonment, unanimously affirmed.

Defendant’s alibi evidence was equivocal enough to warrant its rejection by the jury, and it cannot be sustained as a matter of law in this Court. Nor does the treatment of the alibi testimony in the prosecutor’s summation warrant reversal. Prior familiarity with the neighborhood where a crime has occurred cannot be equated with a juror’s impermissibly " 'conscious, contrived experimentation’ ” (People v Martin, 149 AD2d 534, 535). There is nothing wrong with a juror’s "casual observation of a common, everyday experience which was readily available to any of the jurors without the benefit of any special expertise” (People v Suraci, 137 AD2d 567, 568). As to the propriety of the prosecutor’s invitation for the jury to consider, from their own personal experience, how long it would have taken to get from the crime scene to the alibi situs, this was fair response to the defense summation, which had similarly invited such speculation.

The victim spotted the man she believed to have been her assailant several hours after the crime, following which she gave a somewhat fuller (although not inconsistent) description to the police. Testimonial reference to that later description, by the victim and a detective, was not hearsay because it was offered not for its truth, but for the jury’s evaluation of her opportunity to have observed the crime sufficiently to have been able to report it accurately to the police (People v Huertas, 75 NY2d 487). Even if the repetition of the description were considered bolstering, the admission of such strong and certain identification testimony would be harmless error (People v Johnson, 57 NY2d 969; People v Guerra, 169 AD2d 479). Concur—Rosenberger, J. P., Ellerin, Wallach, Ross and Smith, JJ.