People v. Merriman

79 A.D.2d 619, 433 N.Y.S.2d 475, 1980 N.Y. App. Div. LEXIS 13964

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1980
• Status: Published

Opinion

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered August 17, 1978, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and case remitted to the County Court, Suffolk County, for further proceedings consistent herewith. In this case, where the identity of the assailant was of primary importance, the trial court’s failure to instruct the jury with respect to the evaluation of identification evidence was reversible error. (See People v Rodriguez, 61 AD2d 914; People v Gardner, 59 AD2d 913.) This error was compounded by the total failure on the part of the trial court to marshal the relevant evidence. Furthermore, in view of the fact that the complaining witness was not produced at the Wade hearing prior to the trial, we direct that a new Wade hearing be held at which the complaining witness be produced to testify on the issue of suggestibility of the identification procedures in the conduct of the lineup. Mollen, P. J., Titone, Margett and Weinstein, JJ., concur.