People v. Lopez

123 A.D.2d 399, 506 N.Y.S.2d 600, 1986 N.Y. App. Div. LEXIS 60158

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered February 22, 1983, convicting him of assault in the first degree (two counts), assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered. The findings of fact have been considered and are determined to have been established.

The defendant’s conviction of the crimes of assault in the first degree (two counts), assault in the second degree, and criminal possession of a weapon in the fourth degree, arose out of a barroom brawl which occurred in the early morning hours of April 30, 1982, at Hughie’s Pub in Queens.

During the trial, error was committed by the trial court when it (1) allowed a police officer to testify that certain individuals at the scene of the incident, who did not testify at the trial, identified the defendant as the perpetrator (see, People v Melendez, 55 NY2d 445; People v Cruz, 100 AD2d 882; People v Tufano, 69 AD2d 826) and (2) allowed the same police officer to improperly bolster the hospital identifications of the defendant by two of the complainants (see, People v Trow-bridge, 305 NY 471; People v Ross, 79 AD2d 666). Although this improper bolstering, which initially occurred during the police officer’s trial testimony, resulted in a curative instruction by the court, the effect of the latter was totally dispelled when the jury was allowed to have the police officer’s testimony read back to them without any similar instruction.

Since the evidence of guilt was not overwhelming, these errors require a reversal of the judgment of conviction and a new trial (see, People v Caserta, 19 NY2d 18, 21). Mangano, J. P., Eiber and Hooper, JJ., concur.