People v. Widger

Jan 23, 1987
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Judgment unanimously affirmed. Memorandum: Defendant was convicted after a jury trial of robbery in the first degree arising from the January 31, 1984 robbery of ‍‌​​‌‌‌​​​​​​‌‌‌​‌​​‌​​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌​‌​​‌​​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​‌‌​​​​​​‌‌​​‌​‍the Oneida National Bank with a sawed-off shotgun. Defendant contends that it was error for the court to admit into evidence sawed-off shotgun barrels which were found in defendant’s house as they constituted evidence of uncharged crimes (Penal Law § 265.10 [6]; § 265.15 [5]). The People contend this evidence was properly admitted ‍‌​​‌‌‌​​​​​​‌‌‌​‌​​‌​​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌​‌​​‌​​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​‌‌​​​​​​‌‌​​‌​‍on the basis of the identity exception to the general rule against evidence of prior uncharged crimes (People v Molineux, 168 NY 264, 293). We agree. The prejudicial effect of this evidence being outweighed by its probative value in establishing defendant’s identity, it was correctly received into evidence (People v Ventimiglia, 52 NY2d 350, ‍‌​​‌‌‌​​​​​​‌‌‌​‌​​‌​​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌​‌​​‌​​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​‌‌​​​​​​‌‌​​‌​‍359; People v Sullivan, 103 AD2d 1035). Defendant further contends that he was denied a fair trial by the prosecutor’s misconduct in his opening statement and summation. No objection having been raised to any of these errors, they have not been preserved for our review (People v Dawson, 50 NY2d 311, 324; People v ‍‌​​‌‌‌​​​​​​‌‌‌​‌​​‌​​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌​‌​​‌​​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​‌‌​​​​​​‌‌​​‌​‍Rubin, 101 AD2d 71, 78). Further, though the prosecutor impermissibly impugned the defense, argued facts not in evidence, and bolstered his own witnesses’ testimony, we cannot say that defendant was deprived of a fair trial (see, People v Roopchand, 107 AD2d 35, 36, affd 65 NY2d 837).

We have considered defendant’s remaining contentions and find them ‍‌​​‌‌‌​​​​​​‌‌‌​‌​​‌​​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌​‌​​‌​​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​‌‌​​​​​​‌‌​​‌​‍without merit. (Appeal from judgment of Onondaga County Court, Burke, J.—robbery, first degree, and other offenses.) Present—Dillon, P. J., Callahan, Boomer, Green and Lawton, JJ.