People v. Altman

• Citation: 404 N.Y.S.2d 663,63 A.D.2d 684
• Parties: The PEOPLE, etc., Respondent, v. Joel ALTMAN, Appellant.
• Decision Date: 08 May 1978
• Court: New York Supreme Court Appellate Division

Page 663

404 N.Y.S.2d 663

63 A.D.2d 684

The PEOPLE, etc., Respondent, v. Joel ALTMAN, Appellant.

Supreme Court, Appellate Division,Second Department.

May 8, 1978.

McKee, Dorris & Peltz, Jericho (Harry Peltz, Jr., Jericho, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Scott N. Fein and William C. Donnino, Mineola, of counsel), for respondent.

Before SHAPIRO, J. P., and COHALAN, MARGETT and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from two judgments of the County Court, Nassau County, both rendered December 20, 1976, one convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence (Indictment No. 44232) and one convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence (Indictment No. 44337).

Judgment rendered under Indictment No. 44337 affirmed and case remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd. 5).

Judgment rendered under Indictment No. 44232 reversed, as a matter of discretion in the interest of justice, and new trial ordered.

We reverse the judgment under Indictment No. 44232 for the following reasons:

First: The People were permitted to improperly bolster the identification testimony of the complaining witness, who was the sole witness to the incident. Thus, at the trial, Detective Romano testified that the complaining witness had identified the appellant at a station house lineup. This was clearly improper since the witness was able to identify the appellant at the trial (see People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841; cf. People v. Nival, 33 N.Y.2d 391, 353 N.Y.S.2d 409, 308 N.E.2d 883; People v. Lagana, 36 N.Y.2d 71, 365 N.Y.S.2d 147, 324 N.E.2d 534).

Second: The prosecutor elicited the fact that one of the appellant's alibi witnesses had not reported to the police, or the District Attorney, the fact that appellant had allegedly been with him during the time the crime was allegedly committed. Given the facts of this case, that was reversible error (see People v. Mims, 59 A.D.2d 769, 398 N.Y.S.2d 721; People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679).

In a case where the guilt of the defendant was proven overwhelmingly, we might have found that those errors did not require reversal of the judgment. However, in the instant case, the appellant presented several alibi witnesses who placed him many miles from the scene of the crime. In addition, while the complaining witness testified that the appellant had had "bristles" but not a beard, several witnesses for the defense testified that he had had a full-grown beard well before, and up until and including, the time of the crime. Under all of the...