People v. Fraser

79 A.D.2d 686, 434 N.Y.S.2d 37, 1980 N.Y. App. Div. LEXIS 14072

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1980
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 27, 1979, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Although sufficient evidence was adduced to support the jury verdict finding defendant guilty of attempted robbery in the second degree, the prosecutor improperly questioned the complaining witness regarding an out-of-court identification of defendant, in direct contravention of a prior court order which, following a hearing, suppressed evidence of such identification. The prosecution’s use of the previously suppressed identification was per se reversible error (see Gilbert v California, 388 US 263). This error was compounded by the subsequent testimony of the arresting officer who testified that the complaining witness had identified defendant in the out-of-court identification. Thus, not only was the complaining witness’ in-court identification of defendant enhanced by the improper testimony regarding the suppressed out-of-court identification, but that improper testimony itself was then improperly bolstered by the officer’s testimony (see People v Trowbridge, 305 NY 471). We further note that it was not error to refuse defendant’s request for a missing witness charge (see People v Watkins, 67 AD2d 717). Accordingly, defendant’s conviction must be reversed and a new trial ordered. It is additionally noted that the District Attorney, with commendable candor, concedes that a new trial is required. Mollen, P. J., Cohalan, O’Connor and Weinstein, JJ., concur.