People v. Felder
| Decision Date | 19 February 1985 |
| Citation | 485 N.Y.S.2d 576,108 A.D.2d 869 |
| Parties | The PEOPLE, etc., Respondent, v. Harvey FELDER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Aliano, Maddalone & Morris, Mineola (Robert J. Aliano, Mineola, of counsel), for appellant.
Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Vicki S. Marani, Asst. Dist. Attys., Mineola, counsel), for respondent.
Before LAZER, J.P., and MANGANO, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Nassau County, rendered January 18, 1983, convicting him of two counts of robbery in the second degree, upon a jury verdict, and imposing sentence.
Judgment reversed, on the law, and new trial ordered.
On the same night as the robbery involved herein, police officers arrested defendant and one other individual after the complainant pointed out these people to the officers. Complainant testified as to this identification at trial. When the prosecutor started to elicit testimony from one of the arresting officers concerning this out-of-court identification, the trial court sustained defense counsel's objections, told the prosecutor at a sidebar that this constituted an attempt to bolster the complaining witness's identification and warned him not to pursue this line of questioning. Following this, the prosecutor nonetheless persisted in pursuing this line of questioning and thereby compounded the prejudice. After stating that the complainant had pointed out the two men as being his assailants, the officer testified that he "asked him if he was positive * * * these were the two people who had robbed him earlier in the evening". He then testified that the complainant made a response following which "we patted down both subjects, placed them in handcuffs, and removed them from the bar".
The testimony served to highlight the significance of complainant's identification. Even though his response was not admitted into evidence, the testimony left the jurors with the clear impression that he was particularly sure and that the arrests were made as a result of this response. This was very similar to the testimony in People v. Ross, 79 A.D.2d 666, 433 N.Y.S.2d 851. Our comments there are equally applicable here. The "inevitable effect" of the testimony was ...
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