| People v Nazario |
| 2012 NY Slip Op 07699 [100 AD3d 783] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ismael Nazario, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered January 6, 2009, convicting him of robbery in the second degree (two counts) androbbery in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and in the exercise of discretion, and a newtrial is ordered.
The defendant allegedly stole the victim's cell phone in a park in Queens. He was identifiedby the victim at a police-arranged showup less than 30 minutes after the alleged robberyoccurred, approximately three blocks from the park. The victim was the only eyewitness whoidentified the defendant.
The Supreme Court improvidently exercised its discretion in denying the defendant's motionin limine to present at trial the testimony of a professor of psychology as an expert witness withrespect to several factors that might affect the accuracy of an identification. "[W]here the caseturns on the accuracy of eyewitness identifications and there is little or no corroborating evidenceconnecting the defendant to the crime, it is an abuse of discretion for a trial court to excludeexpert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant tothe witness's identification of the defendant, (2) based on principles that are generally acceptedwithin the relevant scientific community, (3) proffered by a qualified expert, and (4) on a topicbeyond the ken of the average juror" (People v LeGrand, 8 NY3d 449, 452 [2007]; see People v Santiago, 17 NY3d661, 669 [2011]). Here, there was little or no corroborating evidence connecting thedefendant to the crime. The fact that the victim was confronted by the defendant on a clear, sunnyday, and had an unobstructed view of the defendant at close range, does not constitutecorroborating evidence of the identification for purposes of determining whether experttestimony regarding the accuracy of an eyewitness identification is admissible (see People v Cordes, 71 AD3d912, 913 [2010]; cf. People vZohri, 82 AD3d 493, 494 [2011]; People v Fernandez, 78 AD3d 726, 727 [2010]; People v Austin, 46 AD3d 195,200 [2007]). Further, the testimony of the police officer who responded to the scene of theincident, as well as that of the police officer who stopped the defendant shortly after a radiotransmission was sent out describing the assailant, failed to harmonize with the victim'stestimony in such a manner as to furnish the necessary connection between the defendant and thecrime (cf. People v Novak, 212 [*2]AD2d 740, 741[1995]; People v Keindl, 117 AD2d 679 [1986]).
Moreover, the proposed expert testimony was (1) relevant to the victim's identification of thedefendant, (2) based on principles that are generally accepted within the relevant scientificcommunity, (3) proffered by a qualified expert, and (4) on a topic beyond the ken of an averagejuror (see People v Santiago, 17 NY3d at 672; People v Abney, 13 NY3d 251, 268 [2009]; People vLeGrand, 8 NY3d at 452). Thus, the Supreme Court should have granted the defendant'smotion in limine to present the proposed expert testimony at trial (cf. People v Muhammad, 17 NY3d532, 546 [2011]).
The Supreme Court's errors were not harmless. "Trial error is only harmless when there isoverwhelming proof of the defendant's guilt and no significant probability that the jury wouldhave acquitted the defendant were it not for the error" (People v Santiago, 17 NY3d at673-674; see People v Crimmins, 36 NY2d 230, 242 [1975]). Here, the proof of thedefendant's guilt was not overwhelming, and thus, the error was not harmless.
In light of our determination, the defendant's remaining contentions regarding the SupremeCourt's alleged failure to suspend jury deliberations, and those concerning alleged improperremarks made by the prosecutor on summation, have been rendered academic.
Accordingly, we reverse the judgment and order a new trial. Eng, P.J., Mastro, Florio andSgroi, JJ., concur.