Opinion
April 19, 1994
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
Defendant Gullatt's claim that the trial court improperly prevented him from showing that the complaining witness was fired from his job the day after the robbery because he was suspected by his employer as a perpetrator, and that he fabricated his identification in an attempt to regain his job and clear his name, is not preserved for appellate review as a matter of law, and we decline to review it in the interest of justice. Gullatt's counsel never objected when the trial court stopped him from asking the witness if he was aware that his company suspected him of stealing the money, and also never indicated that he wished to elicit testimony that the witness failed to follow proper company procedure for making bank deposits. In any event, if we were to review this claim, we would find that it was not an abuse of discretion to preclude an examination that would not have been probative of any such motive to fabricate but only of the employer's opinion concerning the complainant's involvement, and which could only have served to confuse the jury (see, People v Stewart [Vance], 188 A.D.2d 626, 627, lv denied 81 N.Y.2d 977).
Concerning defendant Stokes, his hand movements, and statement to the victim that he forget about the money, indicating thereby an awareness of being pursued, were legally sufficient to establish the "display" element of robbery in the first degree (People v Butts, 181 A.D.2d 432, 433, lv denied 79 N.Y.2d 1047; People v Haney, 162 A.D.2d 613, lv denied 76 N.Y.2d 940). Moreover, in both instances that Stokes simulated holding a gun, he was running from the victim or the police and in "immediate flight" from the robbery.
Stokes' identification by the victim, who viewed Stokes' face twice during the chase and a third time when Stokes gave the stolen deposit bag to Gullatt, was not unreliable. The fact that Stokes was not wearing the jacket he wore during the robbery and that the victim failed to tell the police that Stokes had some facial hair was properly placed before the jury, and we find no reason to disturb its determination.
Concur — Murphy, P.J., Rosenberger, Wallach, Ross and Rubin, JJ.