| People v Bunge |
| 2010 NY Slip Op 00866 [70 AD3d 710] |
| February 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Charles A. Bunge, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Skadden, Arps, Slate, Meagher & Flom LLP [Michael J. Balch], of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.),rendered June 21, 2007, convicting him of attempted robbery in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial.
The defendant failed to preserve for appellate review his contention that he was deprived hisdue process right to present a defense by the Supreme Court's denial of his pretrial motion forleave to cross-examine the complaining witness by the use of a wanted poster containing aphotograph of an individual who resembled the defendant and who allegedly committed crimessimilar to the crime charged herein, utilizing an identical modus operandi (see People v Decker, 51 AD3d686, 687 [2008], affd 13 NY3d 12 [2009]; People v Olibencia, 45 AD3d 607, 608 [2007]). However, wereach the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6][a]).
The wanted poster sufficiently connected the individual identified thereon with the chargedcrime (cf. People v Schulz, 4 NY3d521 [2005]) and, thus, was probative of whether the complainant may have mistakenlyidentified the defendant as the perpetrator, which was an issue central to the case (see Peoplev Sanchez, 293 AD2d 499, 499 [2002]). Moreover, use of the wanted poster incross-examining the complainant on that issue would have posed no danger of delay, prejudice,or confusion. Since, under the circumstances of this case, the error was not harmless, reversal isrequired (see People v Elder, 207 AD2d 498, 499 [1994]).
The defendant's remaining contentions either are without merit or need not be reached inlight of our determination. Skelos, J.P., Santucci, Dickerson and Roman, JJ., concur.