Summary
reversing second degree robbery conviction due to State's failure to establish that defendant intended to permanently deprive complainant of his property
Summary of this case from Fagon v. BaraOpinion
June 8, 1987
Appeal from the County Court, Nassau County (Santagata, J.).
Justice Brown has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2 [c]).
Ordered that the judgment and order are affirmed.
We reject the defendant's contention that the trial court abused its discretion when it precluded his expert from testifying on the issue of eyewitness identification (see, People v Mitchell, 129 A.D.2d 589). The subject matter of the proffered testimony is not a proper subject for expert testimony inasmuch as it pertains to matters of common knowledge not beyond the ken of lay jurors (see, People v Suleski, 58 A.D.2d 1023; People v Valentine, 53 A.D.2d 832). Any asserted deficiencies with respect to the accuracy of an identification can be conveyed to the jury through cross-examination, argument of counsel during summation, and the court's instructions to the jury (see, People v Brown, 124 Misc.2d 938; United States v Amaral, 488 F.2d 1148).
By not taking exception to the court's curative instructions regarding his prearrest silence, the defendant failed to preserve his objection to the prosecutor's questions on this matter (see, People v Miller, 41 N.Y.2d 857; People v Baldo, 107 A.D.2d 751). In any event, any error was harmless in view of the overwhelming evidence of guilt and the court's instruction to the jury that "[n]o unfavorable inferences may be drawn against the defendant by reason of his silence or his failure to respond to the police officer" (see, People v Santiago, 119 A.D.2d 775, lv denied 68 N.Y.2d 672; People v Terry, 109 A.D.2d 807).
Finally, the defendant's claim (raised on his CPL art 440 motion) that he was improperly adjudicated a second felony offender is without merit (see, People v Loughlin, 66 N.Y.2d 633, rearg denied 66 N.Y.2d 916; People v Ames, 115 A.D.2d 543, lv denied 67 N.Y.2d 759; CPL 400.21), and we decline to exercise our discretion to modify the sentence. Mangano, J.P., Bracken, Brown and Spatt, JJ., concur.