People v. Johnson

New York Court of Appeals

People v. Johnson

552 N.E.2d 164, 75 N.Y.2d 856, 552 N.Y.S.2d 916, 1990 N.Y. LEXIS 290

CourtNew York Court of Appeals

DecidedFebruary 22, 1990

StatusPublished

Cited by3 cases

This text of 552 N.E.2d 164 (People v. Johnson) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Johnson, 552 N.E.2d 164, 75 N.Y.2d 856, 552 N.Y.S.2d 916, 1990 N.Y. LEXIS 290 (N.Y. 1990).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by remitting the case to Supreme Court, New York County, for further proceedings on the indictment.

Defendant was convicted of assault in the first degree based upon his alleged shooting of a taxi driver. On appeal, the Appellate Division reversed his conviction concluding that the trial court erred in admitting the complainant’s out-of-court identification of defendant since the complainant failed to make an in-court identification, not because of deficient recollection, but rather out "of a fear of reprisal against him and his family” (144 AD2d 239, 241; see, CPL 60.25 [1] [a] [in]). Applying our decision in People v Bayron (66 NY2d 77), the Appellate Division concluded that under such circumstances *858 the complainant’s out-of-court identification should not have been admitted under CPL 60.25.

On appeal to this court, the People argue that the complainant identified the defendant in court and that his out-of-court identification testimony was, therefore, admissible under CPL 60.30. Contrary to the People’s contention, both Supreme Court and the Appellate Division properly concluded that the complainant did not make an in-court identification of the defendant. * Since the complainant’s failure to identify the defendant in court was not due to deficient recollection, his out-of-court identification should not have been admitted (People v Bayron, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.

Order modified by remitting the case to Supreme Court, New York County, for further proceedings on the indictment and, as so modified, affirmed in a memorandum.

*

Supreme Court apparently operated under the mistaken assumption that complainant’s out-of-court identification was admissible even though the complainant refused to identify the defendant at trial because of fear. This conclusion by Supreme Court, which predated our decision in People v Bayron (66 NY2d 77), was incorrect.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by remitting the case to Supreme Court, New York County, for further proceedings on the indictment.

Defendant was convicted of assault in the first degree based upon his alleged shooting of a taxi driver. On appeal, the Appellate Division reversed his conviction concluding that the trial court erred in admitting the complainant’s out-of-court identification of defendant since the complainant failed to make an in-court identification, not because of deficient recollection, but rather out "of a fear of reprisal against him and his family” (144 AD2d 239, 241; see, CPL 60.25 [1] [a] [in]). Applying our decision in People v Bayron (66 NY2d 77), the Appellate Division concluded that under such circumstances *858 the complainant’s out-of-court identification should not have been admitted under CPL 60.25.

On appeal to this court, the People argue that the complainant identified the defendant in court and that his out-of-court identification testimony was, therefore, admissible under CPL 60.30. Contrary to the People’s contention, both Supreme Court and the Appellate Division properly concluded that the complainant did not make an in-court identification of the defendant. * Since the complainant’s failure to identify the defendant in court was not due to deficient recollection, his out-of-court identification should not have been admitted (People v Bayron, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.

Order modified by remitting the case to Supreme Court, New York County, for further proceedings on the indictment and, as so modified, affirmed in a memorandum.

*

Supreme Court apparently operated under the mistaken assumption that complainant’s out-of-court identification was admissible even though the complainant refused to identify the defendant at trial because of fear. This conclusion by Supreme Court, which predated our decision in People v Bayron (66 NY2d 77), was incorrect.

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Bluebook (online)

552 N.E.2d 164, 75 N.Y.2d 856, 552 N.Y.S.2d 916, 1990 N.Y. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-ny-1990.

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