People v. Mitchell

34 A.D.2d 690, 312 N.Y.S.2d 396, 1970 N.Y. App. Div. LEXIS 5014

Opinion

Judgment of the Supreme Court, Kings County, rendered June 21, 1968, convicting defendant of assault in the third degree (2 counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law and the facts and in the exercise of discretion, and indictment dismissed. In our opinion, it was error to permit Detective Harris to testify as to the complainant’s prior identification of defendant (People v. Christman, 23 N Y 2d 429, 433; People v. Malloy, 22 N Y 2d 559, 567; People v. Caserta, 19 N Y 2d 18, 21; People v. Cioffi, 1 N Y 2d 70, 73; People v. Trowbridge, 305 N. Y. 471, 478); Mrs. Sampson’s testimony of her pretrial identification at a stationhouse show-up four months after the crime while defendant was without counsel should have been excluded (United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263); the People failed to sustain their burden of proving that Mrs. Sampson’s in-court identification had an independent basis untainted by the stationhouse show-up (cf. People v. Ballott, 20 N Y 2d 600, 607); there is a reasonable possibility these errors might have contributed to the conviction (People v. Baker, 26 N Y 2d 169). Since appellant has served his sentence, the ends of justice will be accomplished in this 'case by the dismissal of the indictment (cf. People v. Kvalheim, 17 N Y 2d 510). Christ, P. J., Rabin, Hopkins and Munder, JJ., concur. (Beldock, P. J., deceased.)