Opinion
February 4, 1992
Appeal from the Supreme Court, New York County (Richard C. Failla, J.).
According to the People, defendant was chased by complainant and four of his friends into a subway station after defendant and two cohorts stole a sum of money from complainant. Eventually, defendant was cornered by two of complainant's friends in a subway car, and, responding to a demand that he return the money, stated that he had given it to one of his friends who had escaped. Seconds later, when police officers arrived at the scene, complainant and his friends pointed defendant out to the officers.
Defendant did not preserve for review the arguments that the officers' testimony concerning the five men pointing him out was improper hearsay with respect to the three friends who did not testify in court, and Trowbridge error (People v Trowbridge, 305 N.Y. 471) with respect to complainant and the friend who identified defendant at the trial (CPL 470.05; People v. Bolling, 166 A.D.2d 203, lv granted 77 N.Y.2d 836), and we decline to reach the issues raised. If we were to consider same in the interest of justice, we would find the first meritless because the gesturing was not offered at trial for the truth of the fact asserted, i.e., defendant's identity, and the second insufficient by itself to warrant a new trial, because, assuming there was impermissible bolstering, there is no reasonable danger that the jury may have used the testimony as a substitute for the identification made by complainant and the other eyewitnesses (People v. Jones, 170 A.D.2d 360, lv denied 77 N.Y.2d 996). Nor did the trial court err in refusing to suppress defendant's statement.
Upon a review of the totality of the circumstances, we find that defendant's will had not been overborne and his capacity for self-determination critically impaired such that the statement he made while cornered was involuntary (People v. Anderson, 42 N.Y.2d 35).
Concur — Sullivan, J.P., Kupferman, Ross, Smith and Rubin, JJ.