People v. Grant

161 A.D.2d 664

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1990
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered December 8, 1986, convicting him of murder in the second degree, attempted murder in the second degree (two counts) and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.

The trial court erred in permitting the People to elicit, over timely objections, trial testimony regarding the side-by-side photographic identification of the defendant by a prosecution witness (see, People v Caseria, 19 NY2d 18; see also, People v Lindsay, 42 NY2d 9; People v Osgood, 89 AD2d 76). Inasmuch as the defendant raised a substantial issue as to identification at trial, we cannot consider the error harmless (see, People v Osgood, supra), and a new trial is warranted.

We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, P. J., Eiber, Sullivan and Balletta, JJ., concur.