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People v. Tinsley

Appellate Division of the Supreme Court of New York, Second Department
Mar 12, 1990
159 A.D.2d 602 (N.Y. App. Div. 1990)

Opinion

March 12, 1990

Appeal from the County Court, Westchester County (Lange, J.).


Ordered that the judgment is affirmed.

The defendant challenges the testimony of two prosecution witnesses on the basis that it improperly bolstered the complainant's out-of-court identification of the defendant in violation of People v Trowbridge ( 305 N.Y. 471). The defense counsel registered no objection to the challenged testimony of one of the witnesses and, thus, the claimed error is not preserved for appellate review (see, CPL 470.05; People v Love, 57 N.Y.2d 1023, 1025). The defendant's second claim of improper bolstering is also unpreserved for appellate review. The trial court sustained defense counsel's objection and instructed the jury to disregard the witness's testimony concerning the complainant's identification of the defendant. The defense counsel did not request any further curative instructions or move for a mistrial on the basis of this testimony. Thus, no error of law was preserved for our review (see, People v Medina, 53 N.Y.2d 951, 953; People v Shaw, 150 A.D.2d 626). In any event, any error in the admission of such improper bolstering testimony must be deemed harmless in light of the complainant's recognition of the defendant from several encounters with him prior to the date of the crimes in question and the ample opportunity she had to observe the defendant during the commission of the crime itself (see, People v Johnson, 57 N.Y.2d 969; People v Perez, 150 A.D.2d 733). The strength of the identification evidence precluded any significant probability that the jury would have acquitted the defendant had it not been for the bolstering errors (see, People v Johnson, supra; People v Mobley, 56 N.Y.2d 584; People v Crimmins, 36 N.Y.2d 230, 242).

The defendant's further argument that the trial court committed reversible error by delivering an unbalanced charge concerning the issue of interested witnesses has not been preserved for appellate review (CPL 470.05; People v Kong, 131 A.D.2d 783). Nor is reversal warranted in the interest of justice as the charge reveals that the trial court properly instructed the jury that they could consider the interest of any witness (see, People v Kong, supra, at 784; People v Reyes, 118 A.D.2d 666). Mangano, J.P., Thompson, Kunzeman and Rubin, JJ., concur.


Summaries of

People v. Tinsley

Appellate Division of the Supreme Court of New York, Second Department
Mar 12, 1990
159 A.D.2d 602 (N.Y. App. Div. 1990)
Case details for

People v. Tinsley

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH TINSLEY…

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

Date published: Mar 12, 1990

Citations

159 A.D.2d 602 (N.Y. App. Div. 1990)
552 N.Y.S.2d 461

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