People v. Stevens

Judgment, Supreme Court, New York County (Harold Rothwax, J. at trial and sentence), rendered October 26, 1988, convicting defendant, after jury trial, of two counts of assault in the second degree, and sentencing him as a predicate violent felony offender to consecutive indeterminate terms of 3 Vi to 7 years, respectively, unanimously affirmed.

Defendant’s conviction arises out of an incident on a Manhattan-bound subway train on March 11, 1988, in which two complaining witnesses were slashed in the face with a razor.

At trial, defendant was identified as the slasher by both eyewitness/victims, as well as by two additional eyewitnesses. Additional testimony by police witnesses regarding show-up procedures did not constitute impermissible bolstering, because each officer testified only that each assault victim had the opportunity to view defendant within two hours of the assault, but did not testify that any victim actually made an out-of-court identification of defendant as the attacker. (See, People v Forbes, 161 AD2d 485.) In any event, even if the officers’ testimony technically bolstered that of the eyewitnesses, admission of the officers’ testimony was harmless in light of the overwhelming evidence of guilt, including the strong identification testimony of the complaining witnesses, and there was no significant probability that defendant would have been acquitted but for such testimony. (See, People v Johnson, 57 NY2d 969.)

This court finds no error in the prosecutor’s summation, which fairly commented on the evidence and responded to the defense summation (see, e.g., People v Fielding, 158 NY 542), nor in the trial court’s marshalling of the evidence which fulfilled its obligation to marshal the evidence to the extent necessary to explain the application of the law (CPL 300.10 [2]), and in no way prejudiced defendant (People v Culhane, 45 NY2d 757). Concur — Murphy, P. J., Milonas, Ellerin, Kupferman and Rubin, JJ.