THE PEOPLE &C., RESPONDENT, v. PAUL FLUITT, APPELLANT.
80 N.Y.2d 949, 605 N.E.2d 357, 590 N.Y.S.2d 870 (1992).
October 22, 1992
2 No. 199
Decided October 22, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Rosali Vasquez, for Appellant.
Robin A. Forshaw, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Complainant was robbed at knifepoint while riding an elevator, alone,
up to her apartment. Moments later, a neighbor saw a man resembling
defendant, who had cloth wrapped around his hand, fleeing the
building. A short time after, the police stopped defendant (who had
cloth wrapped around his hand) on a nearby street in connection with
an unrelated crime. When complainant's husband, in pursuit of the
robber, told police that defendant had robbed his wife, a search of
defendant revealed that he was carrying jewelry belonging to
complainant and a knife. Defendant was arrested, handcuffed and taken
to the police station, where complainant identified him as the robber.
The trial court suppressed both complainant's identification of
defendant (owing to the suggestive show-up) and her in-court
identification (owing to the absence of evidence of independent
source). At trial, however, complainant was allowed to give a physical
description of the robber. Testifying on his own behalf, defendant
recounted that, while out jogging, he had collided with a lookalike
wearing similar clothing, who dropped the knife and jewelry that he
picked up just before the police stopped him.
Complainant was properly allowed to testify to details she could not
have gleaned from the show-up--for example, her detailed description
and identification of the knife as well as the fact that cloth was
wrapped around her assailant's hand--and such details were
corroborated by other evidence. Therefore, while it was improper for
complainant to give a physical description of the robber--there having
been no finding that such description, given for the first time after
the show-up, was untainted (see, People v Moss, ____ NY2d ____)--in
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. PAUL FLUITT, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
the police stopped defendant on a nearby street in connection with an unrelated crime.
When complainant's husband, in pursuit of the robber, told police that defendant had robbed
The trial court suppressed both complainant's identification of defendant (owing to the
Testifying on his own behalf, defendant recounted that, while out jogging, he had collided
Therefore, while it was improper for complainant to give a physical description of the
NY2d ____)--in this case the error was harmless (People v Crimmins, 36 NY2d 230,
Defendant's remaining contentions are either unpreserved or without merit.
Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock and Bellacosa concur.
Judge Smith took no part.
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