People v. Allsbrook
| Decision Date | 26 July 1984 |
| Citation | 479 N.Y.S.2d 827,103 A.D.2d 983 |
| 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, Asst. Dist. Atty., Albany, of counsel), for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from a judgment of the County Court of Albany County, rendered June 8, 1983, upon a verdict convicting defendant of the crimes of rape in the first degree (one count), attempted sodomy in the first degree (two counts) and robbery in the second degree (one count).
At approximately 11:00 P.M. on March 15, 1983, Mary Walker left the residence of her friend, Linda Fitzpatrick, and, while walking through a schoolyard in the City of Albany, was attacked, raped and sodomized by three individuals, one of whom is the defendant herein. When released, Walker ran back to the Fitzpatrick house for assistance. Fitzpatrick walked to the schoolyard area and followed three people, two males and a female, to a bar located on the corner of Sheridan and Lexington Avenues in the City of Albany. When she returned to her home, she learned that her husband had called the police. When the police arrived, Fitzpatrick related the events and informed the officers that the perpetrators were in the Yanas bar at the corner of Sheridan Avenue. Upon arriving at the Yanas bar, Fitzpatrick pointed out the three people she had followed to the police. At this point the victim, Mary Walker, entered the bar with the police and identified her attackers.
Defendant, along with the two others, was tried and convicted of first degree rape, two counts of attempted sodomy in the first degree and robbery in the second degree. The robbery conviction was based on the theft of two rings from the victim. Defendant was sentenced to several indeterminate sentences to be served consecutively. This appeal by defendant ensued.
Because of prosecutorial error during the trial, we are constrained to reverse the judgment and remit the matter for a new trial.
Bolstering a victim's in-court identification by third persons other than an eyewitness is plainly error (see People v. Mobley, 56 N.Y.2d 584, 450 N.Y.S.2d 302, 435 N.E.2d 672). This error cannot be deemed harmless where "the evidence of identity is not so strong that there is no substantial issue on the point" (People v. Orse, 91 A.D.2d 1003, 1004, 457 N.Y.S.2d 581). The complainant's identification testimony was equivocal at best. She testified that the man who raped her had "fuzzy" hair, some kind of facial hair, wore a ring or rings and was wearing what she described as an "orange" jacket. While this description was not totally inaccurate, it failed to identify defendant by facial features. Walker was also confused as to whether defendant or his male codefendant had a mustache. Next, the "orange" jacket turned out to be a blue vest with an orange lining. Between the time of the arrest, the time of the pretrial hearing and the time of the trial, the victim's story changed in several subtle ways, the most significant change being the switch from identifying her attackers as three males to two males and a female. Given the ambiguity of Walker's identifying testimony, the bolstering testimony of police officer Kenneth Kennedy that, on the night in question, he had seen complainant point out defendant in the Yanas bar was extremely prejudicial (see People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841). The policy behind the Trowbridge rule is to prevent an inaccurate identification, however well intentioned, to become fixed in the minds of the jury solely through repetition (see People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82). Such bolstering testimony is not prejudicial only when the evidence of identity is strong that there is no substantial issue on the point (People v. Malloy, 22 N.Y.2d 559, 567, 293 N.Y.S.2d 542, 240 N.E.2d 37). Here, absent the testimony of Officer Kennedy, there is no "clear and strong" identification testimony of defendant.
While normally a specific objection is...
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...57 N.Y.2d 969, 970, 457 N.Y.S.2d 230, 443 N.E.2d 478; People v. Allsbrook, 105 A.D.2d 467, 480 N.Y.S.2d 787, revg. on rearg. 103 A.D.2d 983, 479 N.Y.S.2d 827; see also People v. Irving, 107 A.D.2d 944, 484 N.Y.S.2d 354). This is not an instance where the testimony of the only prosecution wi......
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People v. Irving
...Albany, the underlying facts of which are set forth in our previous decision concerning one of the codefendants (see People v. Allsbrook, 103 A.D.2d 983, 479 N.Y.S.2d 827, vacated on rearg. 105 A.D.2d 467, 480 N.Y.S.2d 787 ). Defendant was tried and convicted as indicated above and was sent......
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People v. Allsbrook
...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 ......