People v. Otero

45 A.D.2d 952, 359 N.Y.S.2d 318, 1974 N.Y. App. Div. LEXIS 4075

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 1974
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Bronx County, rendered on March 20, 1973, convicting him after a trial on consolidated burglary indictments before McCaffrey, J. and a jury of the crimes of burglary in the second degree, burglary in the third degree, grand larceny in the third degree (two counts), and sentencing him to an indeterminate term of up to five years on each of the burglary counts, an indeterminate term of up to four years on each of the grand larceny counts and an unconditional discharge on the attempted grand larceny charge, the sentences to run concurrently with each other. Judgment unanimously reversed, on the law and in' the interest of justice, and a new trial directed. The defendant’s defense to each of the offenses charged was an alibi. His conviction rests entirely on identification testimony, the conflicting character of which casts considerable doubt upon the validity of the charges made against him, for which he was convicted. There was an impermissible “ bolstering ” of the claimed eyewitness testimony; testimony by a police officer, regarding a prior identification of defendant by the complainant, when the identification issue is a close one, constitutes error requiring a new trial, even though no objection was taken to the testimony. (People v. Trowbridge, 305 N. Y. 471; People v. Hoban, 28 A D 2d 562; People v. De Jesus, 11 A D 2d 711.) And the rule is clear in this State that a witness may not testify to an extrajudicial identification of the defendant, on the People’s direct ease. (People v. Griffin, 29 N Y 2d 91, 93; People v. Christman, 23 N Y 2d 429; People v. Cioffi, 1 N Y 2d 70, 73.) Concur — McGivern, P. J., Markewich, Nunez, Kupferman and Capozzoli, JJ.