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People v. Forbes

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 1998
248 A.D.2d 552 (N.Y. App. Div. 1998)

Opinion

March 9, 1998

Appeal from the Supreme Court, Queens County (Browne, J.).


Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).

The defendant has not preserved for appellate review his contention that his waiver of his right to a jury trial was legally insufficient ( see, People v. Magnano, 158 A.D.2d 979, affd 77 N.Y.2d 941, cert. denied 502 U.S. 864; People v. McKnight, 198 A.D.2d 306). In any event, his waiver was knowingly, voluntarily, and intelligently made ( see, People v. McQueen, 52 N.Y.2d 1025; People v. McKnight, supra; People v. Livingston, 184 A.D.2d 529).

While the court erred in finding an independent source for one of the complainant's in-court identifications, the People proved by clear and convincing evidence that the other complainant had a sufficient time to view the defendant irrespective of the tainted lineup ( see, People v. Livingston, supra; People v. Hyatt, 162 A.D.2d 713; People v. Johnson, 129 A.D.2d 739). As there was no reasonable possibility that the error might have contributed to the defendant's conviction, it was harmless beyond a reasonable doubt ( see, People v. Harris, 80 N.Y.2d 796).

Finally, since the court pronounced sentence on each count, remittitur is not necessary ( see, CPL 380.20; cf., People v. Sturgis, 69 N.Y.2d 816; People v. Cuccuru, 236 A.D.2d 419).

Santucci, J. P., Joy, Friedmann and McGinity, JJ., concur.


Summaries of

People v. Forbes

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 1998
248 A.D.2d 552 (N.Y. App. Div. 1998)
Case details for

People v. Forbes

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES FORBES, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 9, 1998

Citations

248 A.D.2d 552 (N.Y. App. Div. 1998)
669 N.Y.S.2d 868

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