Opinion
January 17, 1991
Appeal from the Supreme Court, New York County, Stephen Crane, J.
In a previously decided appeal of a codefendant (People v McMahon, 167 A.D.2d 137), we found that the stop of the vehicle was warranted, and that the precinct showup identification by eyewitness Roland was justified by exigent circumstances. With respect to the other witnesses' showup identifications, we held that these were not justified, but that the hearing court's finding of an independent source for the subsequent in-court identifications was proper. There is no reason to depart from that determination in the within appeal.
The court's charge to the jury regarding defendant's decision not to take the witness stand complied with the provisions of CPL 300.10 (2). Its instruction that "the law gives [the defendants] the right if they say to the prosecution `prove your case against me, it is my judgment that the situation is such that I am not bound to the witness stand'" was surplus language which, given the overwhelming evidence of guilt against defendant, does not constitute reversible error. (See, People v Diggs, 151 A.D.2d 359, lv denied 74 N.Y.2d 895.)
The defendant further claims that his rights to an impartial jury and fair trial were violated by the court's arranging for a discharged alternate juror to be transported with the deliberating jurors. The court specifically directed that the discharged juror be kept separate from the other jurors and that there be a court officer in the van. This procedure was expressly consented to by all parties, and the record does not disclose any violation of such direction. Moreover, this claim has also been previously rejected by this court. (People v McMahon, supra.)
We have examined defendant's remaining contentions, including those contained in the pro se brief, and find them to be without merit.
Concur — Rosenberger, J.P., Asch, Kassal, Wallach and Smith, JJ.