Opinion
October 2, 1990
Appeal from the Supreme Court, New York County (James Leff, J.).
Viewing the evidence in the light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621), we find that defendant's guilt was proven beyond a reasonable doubt. Any conflict in the testimony was for the trier of fact to resolve (see, People v Siu Wah Tse, 91 A.D.2d 350, lv denied 59 N.Y.2d 679). Further, the record reveals that the showup identification occurred in close spatial and temporal proximity to the robbery while the victim's memory of defendant's face, which she had observed for several minutes in a well-lit vestibule, was still fresh. (People v Johnson, 57 N.Y.2d 969, 970; People v. Bond, 156 A.D.2d 573.)
Although it is improper for the prosecutor to elicit testimony from arresting officers that they arrested defendant after complainant had identified him and after insuring that complainant was certain of her identification (People v Trowbridge, 305 N.Y. 471; People v. Blue, 155 A.D.2d 472), the error was harmless inasmuch as there was overwhelming proof of guilt, and no significant probability that defendant would have been acquitted but for the bolstering. (People v. Johnson, supra; People v. Forbes, 161 A.D.2d 485, 486.)
Our review of the record discloses that the cousin of the prosecution witness was not shown to be under the control of the People, and that the expected testimony would have been cumulative. Accordingly, the trial court properly refused to give a missing witness charge. (See, People v. Gonzalez, 68 N.Y.2d 424, 427.)
We decline to review defendant's remaining unpreserved contentions.
Concur — Kupferman, J.P., Sullivan, Milonas, Asch and Kassal, JJ.