Opinion
Argued February 5, 1985
Decided March 19, 1985
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, John F. Hayes, J.
Bertrand J. Kahn and William E. Hellerstein for appellant.
Elizabeth Holtzman, District Attorney ( Robin Bernstein and Barbara D. Underwood of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed. We agree with the Appellate Division that the testimony of the defense investigator was clearly collateral to the principal question which was to be resolved by the jury, that is, whether the defendant committed the robbery.
Defendant did not interpose an "alibi" defense, and never claimed that he was with Mr. and Mrs. Gibbs in their apartment during the robbery. Additionally, the testimony offered by defendant would merely have informed the jury that Mr. and Mrs. Gibbs could no longer be found; it would not have corroborated the statement made by codefendant Bryant that defendant lived with Mr. and Mrs. Gibbs in their apartment in the vacant building, which was where defendant was found shortly after the robbery occurred. Furthermore, his flight to an apartment, in which he allegedly lived, was not inconsistent with guilt on the robbery charges.
Accordingly, we find that no prejudicial error was committed by the trial court in this regard.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, ALEXANDER and LYNCH concur; Judge KAYE taking no part.
Designated pursuant to N Y Constitution, article VI, § 2.
Order affirmed in a memorandum.