| People v Thomas |
| 2009 NY Slip Op 09728 [68 AD3d 685] |
| December 29, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daniel Thomas, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered March 27,2007, convicting defendant, after a jury trial, of robbery in the second degree, and sentencinghim to a term of eight years, affirmed.
Evidence of guilt was overwhelming in this case. The arresting officer testified thatdefendant and his accomplice were both stopped at 103rd Street and Park Avenue. While thecommand log, which was completed by a desk officer not involved in the arrest, indicated thatthe two individuals had been arrested a block apart, the arresting officer testified, both on directand on rebuttal, that they were arrested at the same location, after having been observed runningtogether. At the time they were stopped, defendant's accomplice was in possession of a cellphone and some money which had just been stolen in a robbery a block away. The victim laterpositively identified defendant and his accomplice as the two individuals who had stolen the cellphone and the money from him.
Defendant was tried by himself. At the trial, the court permitted the victim to identifydefendant's accomplice in a photograph. As a general rule, identification by the victim of anaccomplice who is not on trial is not relevant to any material issue, inasmuch as theidentification of one individual is not probative of the accuracy of the identification of another(see generally People v Rosario, 127 AD2d 209, 215 [1987], lv denied 70 NY2d655 [1987]). In this case, however, in view of the overwhelming evidence of guilt, as discussedabove, any error was harmless (People v Jenkins, 305 AD2d 287 [2003], lvdenied 100 NY2d 621 [2003]).
More to the point, only the victim testified as to his identification of defendant. The courtprohibited the People from presenting testimony by the police officers confirming that the victimhad made an identification. This is not one of those cases where the bolstering error iscompounded because a third party, such as a police officer or a companion, corroborated the factthat the victim identified a codefendant on a prior occasion (see e.g. People v Monroe,40 NY2d 1096, 1098 [1977]; People vSamuels, 22 AD3d 507, 508-509 [2005]).
Defendant's challenge to the victim's in-court identification of defendant is also [*2]unavailing. At an independent source hearing, the People proved byclear and convincing evidence that the identification was based upon a source that wasindependent of a showup identification, which the court suppressed on Fourth Amendmentgrounds (People v Young, 7 NY3d40, 44 [2006]; People v Williams, 222 AD2d 149, 153 [1996], lv denied 88NY2d 1072 [1996]). During the robbery the victim had ample time to observe defendant's face.The record indicates that there was sufficient lighting at the location where the robbery occurred;the victim displayed a measured calm as he requested that the robbers take only his money andnot his cell phone; and before the showup identification he had provided a description thatdescribed the robbers sufficiently enough for the police to surmise that the men already incustody were the perpetrators.
We perceive no basis for reducing sentence. Concur—Friedman, J.P., Nardelli andDeGrasse, JJ.
Catterson, J., dissents in a memorandum as follows: I must respectfully dissent because, inmy opinion, the People improperly bolstered the in-court identification of the defendant. Becausethey acknowledge such improper bolstering on appeal, and since the defendant clearly preservedthe issue for appellate review, I would reverse and remand for a new trial.
This appeal arises out of the defendant's conviction, after a jury trial, of robbery in thesecond degree. The defendant argues that without the bolstered identification testimony, the onlyevidence against him was police testimony that he was running in the street in the early hours ofthe morning with an alleged accomplice who was found to have a stolen cell phone on hisperson. Hence, the defendant asserts the admission of the bolstered identification testimony isreversible error.
Testimony at trial adduced the following: in the early hours of the morning of June 10, 2006,two plainclothes police officers traveling northbound along Park Avenue saw two men, thedefendant and his alleged accomplice Victor Cruz, running. They turned the car around andsignaled to the two men to stop to speak to them. One of the police officers patted down thedefendant and asked for identification. While the majority points to the testimony of the arrestingofficer that the two men were arrested "at the same location," this was disputed by evidence ofthe command log, completed at the precinct, which indicated the two men were stopped a blockapart.
In any event, after the stop, the defendant handed over identification and, apparentlyinadvertently, a credit card which did not bear his name but which the defendant said belongedto a family member. Both the defendant and Cruz were then handcuffed and taken to the 23rdprecinct where they were searched. A cell phone and some money were found on Cruz, while thedefendant's pockets yielded a small glassine of crack cocaine and two dollars.
While the defendant and Cruz were being held, an officer from the precinct left in responseto a report of a robbery on 103rd Street. The complainant reported that two men, "one black andone Hispanic," had "roughed him up" and taken his cell phone. At the time, the complainantcould not provide any more of a description but the officer remembered seeing the [*3]cell phone among items taken from Cruz at the precinct andarranged for the defendant and Cruz to be brought to 103rd Street for a showup identification.The defendant and Cruz were made to stand behind the patrol car so that only their torsos andfaces were visible to the complainant who then identified the two men as his assailants. At thispoint, the defendant and Cruz were arrested.
Subsequently, the defendant moved to suppress the information learned or evidencerecovered as a result of the arrest, and to preclude testimony regarding the showup identification,as well as any in-court identification. The motion court agreed that the arrest was improper andordered any evidence or statements made by the defendant suppressed. However, following anindependent source hearing, the court permitted the complainant's in-court identification of thedefendant because it concluded that the complainant was a "credible witness . . .highly intelligent" and "observant" who had "adequate opportunity as well as ability to see" thedefendant and Cruz. At the hearing, the complainant testified that the man who held him down,the defendant, was wearing a white T-shirt and was in his early 20s, while the second man wentthrough the complainant's pockets. Subsequently at trial, the complainant testified that he had"no doubt" that the defendant was the man who held him down. By contrast, the police officerwho arrested the defendant testified that the defendant was wearing a dark-colored jacket andyellow boots on the night of the robbery while Cruz was wearing sneakers, a white shirt, andblue jeans.
At trial, over defense counsel's objections, the People were permitted to present testimony ofthe complainant's identification of the alleged accomplice at the showup, as well as testimonythat items taken from the complainant were recovered from Cruz. Counsel argued that prejudicewould result from the jury's speculation that the defendant was also present at the showupidentification.
At the close of testimony and before the jury was charged, defense counsel again objected tothe Cruz identification testimony, citing to case law that established that in a severed trial,identification evidence of a codefendant that is not on trial is irrelevant and inadmissible.(See People v Monroe, 40 NY2d 1096, 1098 [1977]; People v Williams, 31 AD3d 797 [2d Dept 2006].) Counselrequested that the testimony be stricken or that a mistrial be granted. In response to defensecounsel's argument, the court stated that the Cruz identification testimony was relevant and theprosecutor had the "obligation to prove beyond a reasonable doubt that both individuals werejoined together." The trial court denied both requests.
At summation, the prosecutor then referenced the identification testimony as follows: "So,let's talk about those ID's and why when [the complainant] stands here in court and sits on thatwitness stand and tells you that that man is the man who held him down and covered his mouth[,that] is the man. How can you rely on that? Well, first of all, he's one for one, okay. He's one forone. And what I mean by that is he identified Mr. Cruz. And you heard testimony about theidentification of Mr. Cruz at the scene shortly after the robbery. And he's one for one. We knowhe's accurate about that because Mr. Cruz has his property on him and he gets it back that night.So, he's one for one."
After summation, the trial court reiterated its reasoning as to the Cruz identification, stating"I believe that in this particular case the introduction of evidence concerning the identification ofthe co-defendant was appropriate . . . After all, the complainant's ability to observeand remember were crucial issues in this particular case."[*4]
In my opinion, the trial court erred in allowing theintroduction of testimony as to complainant's identification of Cruz, and defendant's objections attrial as detailed above fully preserve the issue for appellate review. Since the defendant objectedto the complainant's identification of Cruz on precisely the same grounds as he now offers onappeal, the defendant made his position clearly known to the court. (See People v Gray,86 NY2d 10, 19 [1995].) Moreover, the court had an opportunity, and indeed took theopportunity, to adjudicate the issue on the merits. Hence, the objection to the bolsteringidentification was properly preserved. (See People v Jean-Baptiste, 38 AD3d 418, 420 [1st Dept 2007],lv denied 9 NY3d 877 [2007].)
Further, in my opinion, the defendant correctly asserts that the admission of evidence of awitness's identification of an accomplice not on trial is an error because the prosecutor, inexplaining the relevance of the Cruz identification testimony to the jury, used precisely thatprejudicial logic that constitutes the basis for preclusion of third-party identification testimony.
It is well settled that the admission of evidence of a witness' identification of an accomplicenot on trial is improper since it is not relevant to any material issue and cannot be used as a basisfor evaluating the accuracy of that witness identification of the defendant on trial. (SeePeople v Monroe, 40 NY2d at 1098; People v Rosario, 127 AD2d 209, 215 [1stDept 1987], lv denied 70 NY2d 655 [1987] [a complainant's "ability to identify oneperpetrator is not necessarily probative of the accuracy of his identification of another"].)
Specifically in this case, such identification testimony was improper bolstering as clearlyseen in the prosecutor's summation that because the complainant correctly identified the manwho had complainant's cell phone in his pocket, then he was necessarily correct in hisidentification of the defendant as the second man involved in the robbery. Indeed, the Peopleconcede in their brief that in the summation they used the complainant's identification of Cruz to"improperly bolster" the complainant's identification of the defendant.
Moreover, I do not agree that, in this case, bolstering was harmless error. (Cf. People vJohnson, 57 NY2d 969 [1982]; People v Rosenberg, 46 AD3d 357 [1st Dept 2007]; see alsoPeople v Glenn, 52 NY2d 880, 881 [1981] [a court may uphold the conviction,notwithstanding a clear error, where the proof of guilt is "overwhelming"].)
The only direct evidence linking the defendant to the robbery was the complainant'sidentification testimony. He was the sole eyewitness. At trial, the police officer who stopped thedefendant on the street acknowledged that he did so solely because the defendant was running,late at night. The evidence of the command log completed by the desk officer showed that thedefendant was stopped at Park Avenue and 103rd, and that the alleged accomplice was stoppedat Park and 104th—a block apart. Moreover, the defendant was not found to be inpossession of any item that was taken from the complainant during the robbery.
Additionally, testimony at the hearing adduced that prior to the showup identification, thecomplainant could not give any detailed physical description of the assailants. He testified thathe was walking home wearing headphones; that he was surprised by the attack and that therobbery lasted less than one minute after which the assailants walked away with their backs tothe victim. Indeed, the complainant's subsequent description at the independent source hearingthat the defendant was wearing a white T-shirt and was in his early 20s was controverted at trialwhen [*5]it was established that the defendant was wearing adark shirt and was nearly 40 years old at the time of his arrest for the robbery.
For all the foregoing reasons, I believe that, since there were reasons for the jury to doubt theaccuracy of the complainant's identification of the defendant, and because the identification wasthe critical piece of evidence, the improper bolstering by the People constitutes reversible error. Iwould therefore vacate the judgment and remand for a new trial.