People v. Pope

¶1Appeal by defendant from a judgment of the Supreme Court, Queens County (Tsoucalas, J.), rendered December 10,1979, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. The complainant testified that he had been robbed and beaten by a group of youths, while he was traveling on a subway train. As the sole identifying witness called by the prosecution, he specifically testified that shortly after the robbery he had identified appellant and his codefendant as two of his assailants. In addition, hi was able to identify appellant at trial. Although on cross-examination the complainant admitted that he had previously misdescribed appellant as wearing a brown jacket, he nevertheless testified that he was positive of his identification of appellant at the time of the incident, as well as at trial. Under these circumstances, it was improper for the trial court to permit three police officers to testify, in substance, as to the complainant’s identification of appellant shortly after the incident (see People v Trowbridge, 305 NY 471; People v Ross, 79 AD2d 666). “[T]he extensive and repeated violations of the Trowbridgerule cannot be overlooked inasmuch as ‘the evidence of identity is [not] so strong that there is no serious issue upon the point’ (People v Caserta, 19 NY2d 18, 21; People v Napoletano, 58 AD2d 83, 91)” (People v Ross, supra, p 667). In light of our determination, we need not reach the other issues raised by defendant. Hopkins, J. P., Mangano, Rabin and Cohalan, JJ., concur.