People v. Gonzales

52 A.D.2d 789, 383 N.Y.S.2d 332, 1976 N.Y. App. Div. LEXIS 12577

Opinion

Judgment, Supreme Court, Bronx County, rendered January 9, 1975, convicting the defendant upon a jury verdict of robbery in the first degree and sentencing him as a second felony offender to a term of from 4½ to 9 years, unanimously reversed, on the law, and the indictment dismissed. This matter is foreclosed by the opinion of this court in the appeal of the appellant’s codefendant, People v Marrero (51 AD2d 513), in which this court acknowledged the impropriety of the show-up. Whereas in that case it was concluded that there was sufficient independent basis to support the in-court identification of the defendant Marrero, we find that in this case the victim was not in a position to observe this defendant and, therefore, the show-up being improper, the in-court identification was thereby tainted (see Stovall v Denno, 388 US 293, 301-302), and cannot be otherwise resurrected. (United States v Wade, 388 US 218.) Concur—Stevens, P. J., Kupferman, Lupiano, Capozzoli and Lane, JJ.