Opinion
November 20, 1995
Appeal from the Supreme Court, Queens County (Robinson, J.).
Ordered that the judgment is affirmed.
The defendant, a passenger in the complainant's taxicab, told the complainant to get out of the car "or I'll kill you", and pointed to his back, along his waist, as his female companion announced that the defendant had a gun. The complainant testified: "I didn't take any chance. I just got out [of the taxicab]". The defendant's gesture which, under the circumstances, "conspicuously and consciously conveyed the impression" that the defendant was reaching for a gun, was sufficient to establish the defendant's guilt of robbery in the second degree upon the theory that the defendant displayed what appeared to be a firearm (People v Lopez, 73 N.Y.2d 214, 222; see, Penal Law § 160.10 [b]; People v Haney, 162 A.D.2d 613; People v Smith, 142 ADd 619; People v Hazel, 133 A.D.2d 847).
During the course of the trial the defendant asked for leave to admit in evidence the Grand Jury testimony of his deceased codefendant. The defendant asserted that the Grand Jury testimony was admissible pursuant to the principles enunciated in People v Tinh Phan ( 150 Misc.2d 435, 438-439, affd 208 A.D.2d 659), which held that a defendant may introduce secondary forms of evidence such as Grand Jury testimony in evidence in a criminal proceeding if "the evidence is material to the defense", the People had a full and fair opportunity to cross-examine the witness before the Grand Jury, and the witness is no longer available. There is no ruling on the record denying that application, but counsel later noted on the record that the application had been denied. Consequently the issue of the admissibility of that testimony (cf., People v Terry, 148 A.D.2d 478) was preserved for appellate review.
However, the application was properly denied since the Grand Jury testimony was not material to the defendant's defense. The codefendant did not contradict the victim or any of the other witnesses for the prosecution in any material respect (see, Rosario v Kuhlman, 839 F.2d 918). At one point the codefendant testified that the victim armed himself with a crowbar. However, he acknowledged that he "didn't see this" and that the information regarding the crowbar had been told to him after the event. The codefendant's testimony as to what other people told him was inadmissible as hearsay (see, Annotation, Former Testimony Used at Subsequent Trial as Subject to Ordinary Objections and Exceptions, 40 ALR4th 514).
The defendant's remaining contentions are without merit. Sullivan, J.P., Thompson, Hart and Goldstein, JJ., concur.