Opinion
December 17, 1982
Appeal from the Monroe County Court, Bergin, J.
Present — Dillon, P.J., Callahan, Denman, Boomer and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of conviction, following a jury trial, of rape in the first degree (Penal Law, § 130.35), sodomy in the first degree (Penal Law, § 130.50), assault in the first degree (Penal Law, § 120.10) and burglary in the first degree (Penal Law, § 140.30). The sole issue raised on appeal is whether testimony by the emergency room physician regarding the victim's identification of her assailant constituted improper bolstering and impermissible hearsay. The victim testified that she had known the defendant for five or six years prior to the incident. She had dated his brother and her sister had been the defendant's girlfriend. The victim had ample opportunity to observe the defendant during the sexual assault which took place in her lighted bedroom. Further, her identification of defendant was corroborated by testimony that she had fought with the defendant for the knife used during the attack and bit his hand. Defendant had numerous recent scratches and cuts on his hands when arrested the following morning. The victim testified at trial that there was no doubt in her mind that defendant was her assailant. The admission of the victim's statement regarding her prior identification of the defendant to the doctor improperly bolstered her testimony. As such, it should have been excluded ( People v Trowbridge, 305 N.Y. 471). However, the evidence of identification and of guilt is clear and strong. In view of this overwhelming evidence, the improper bolstering testimony must be considered harmless ( People v Johnson, 57 N.Y.2d 969; People v Mobley, 56 N.Y.2d 584).