People v. Allsbrook
| Decision Date | 11 October 1984 |
| Citation | 480 N.Y.S.2d 787,105 A.D.2d 467 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Earl ALLSBROOK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Daniel G. Moriarty, Albany, for appellant.
Sol Greenberg, Dist. Atty., Albany (George H. Barber, Albany, of counsel), for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Motion for reargument of a decision of this court, dated July 26, 1984, which reversed a judgment of the County Court of Albany County, rendered June 8, 1983.
The People have moved for reargument of our July 26, 1984 decision reversing defendant's conviction for first degree rape, two counts of first degree attempted sodomy, and second degree robbery (People v. Allsbrook, 103 A.D.2d 983, 479 N.Y.S.2d 827 ). The primary grounds for reversal, i.e., improper bolstering of the victim's identification testimony and inadequacy of the jury charge on identification, were based upon our conclusion that the identification testimony by the victim was equivocal. Since neither the bolstering testimony nor the jury charge was objected to, we reversed in the interest of justice because we viewed the identification testimony as weak. On the original appeal, we did not have the majority of the trial exhibits before us. Viewing these exhibits on reargument, it is now clear that the two primary inconsistencies which we found in the identification testimony are not significant. We noted that the victim stated that defendant was wearing an orange jacket when, in fact, he was wearing a blue vest with an orange lining. Upon viewing the garment, it is a heavy winter vest which could reasonably be described as a jacket. Indeed, at trial, several of the witnesses referred to the garment as a jacket. Additionally, while the vest is not designed to be reversible, it is clear that it could be worn inside out with the orange lining facing out. The victim testified that defendant was wearing it inside out. Thus, any inconsistency in the description of the jacket is insignificant.
The second major inconsistency in the identification testimony is that the victim initially described her assailants as three men and later changed her description to two men and one woman. Upon reviewing the photographs of defendant and his codefendants which were introduced at trial, it is apparent that this inconsistency also is not significant. The female codefendant was dressed in men's clothing...
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