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80 N.Y.2d 798

People v. Johnson

New York Court of Appeals

Decided June 9, 1992

New York Court of Appeals · decided 1992-06-09

Cited by 1 later decisions — most recently November 2020

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1992-06-09

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¶1OPINION OF THE COURT

¶2Memorandum.

¶3The order of the Appellate Division should be reversed and a new trial ordered.

¶4Defendant and a codefendant were convicted after a jury trial of two counts of murder in the second degree and additional, related criminal counts.

¶5We agree with the Appellate Division that the eyewitness’s testimony regarding the lineup identification of defendant should have been suppressed and, therefore, was erroneously received in evidence at trial. However, we conclude, as did the dissenting Justice below, that the error in this case cannot be deemed harmless (People v Johnson, 176 AD2d 818, 820; compare, People v Harris, 80 NY2d 796 [decided today]; see, People v Crimmins, 36 NY2d 230).

¶6The eyewitness, the sole witness who inculpated defendant in the commission of these crimes, gave testimony which was internally contradictory and inconsistent in nature. Significantly, the trial prosecutor pointedly relied on the erroneously admitted lineup evidence in the People’s opening statement and summation, thus exacerbating the prejudicial impact. Under these circumstances, the educement before and finding by the suppression court of an independent source for the witness’s in-court identification does not, standing alone, satisfy the harmless error standard. We cannot conclude on this *800record that there was "no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt.” (Id., at 237.)

¶7We have considered defendant-appellant’s other arguments and conclude that they lack merit.

¶8Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

¶9Order reversed, etc.

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