People v. Forest

• Decision Date: 30 December 1975
• Citation: 50 A.D.2d 260,377 N.Y.S.2d 492
• Parties: The PEOPLE of the State of New York, Respondent, v. Allen FOREST, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 492

377 N.Y.S.2d 492

50 A.D.2d 260

The PEOPLE of the State of New York, Respondent, v. Allen FOREST, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 30, 1975.

Diana A. Steele, New York City, of counsel (William E. Hellerstein and William J. Gallagner, New York City, attys.), for defendant-appellant.

Barry L. Kluger, Brooklyn, of counsel (Mario Merola, Dist. Atty.), for respondent.

Before STEVENS, P.J., and MARKEWICH, KUPFERMAN, CAPOZZOLI and LANE, JJ.

STEVENS, Presiding Justice.

Defendant-appellant (defendant) was charged in a twelve-count indictment with three separate robberies, two of which were committed on February 1, 1973 (the McCoy and McCloskey robberies) and the other (the Knox robbery) which was committed on February 27, 1973. The jury acquitted defendant of all counts relating to the McCloskey and Knox robberies. All of the robberies involved purse snatchings in the Bronx. Knox and McCloskey were unable to identify defendant as the perpetrator of the crimes against them and in those cases the People relied upon the testimony of two eye witnesses who identified defendant in court. In the McCoy robbery the victim, Gloria McCoy, was shown an array of photographs by the police and first chose the picture of a different person and identified him as the man who robbed her. Subsequently, she selected a picture of defendant from a different group of photos and identified him as the robber.

By an omnibus motion dated June 18, 1973, defendant, in addition to seeking suppression of the identifications, moved for severance and separate trials of the counts of the indictment relating to the three robberies, urging that his right to a fair trial would be jeopardized by a joint trial of the charges. Following a Wade hearing defendant renewed this motion which the court denied. At the Wade hearing, Mrs. McCoy and the two eye witnesses to the other robberies testified. While the grant or denial of a motion for severance is discretionary with the court, we are of the view that in this case, in light of the testimony as it developed at the Wade hearing, the deinal of defendant's renewed motion to sever was an improvident exercise of discretion. At the Wade hearing the court had a full opportunity to hear and assess the testimony of Vincent De Marco and Anthony Sausto, one a witness to the Knox robbery and the other a witness to the McCloskey robbery, particularly as it dealt with their identification of defendant. Those witnesses' opportunity for observation and their power of recall coupled with the identification testimony in the McCoy robbery demonstrated a strong possibility, all three crimes being of a similar nature, of a conviction by reason of their cumulative effect rather than on the strength of the specific evidence regarding each crime. Under the circumstances, a severance was warranted for good cause and in the interests of justice (CPL § 200.20, subd. 3).

Defendant also contests the validity of the court's charge on reasonable doubt. The People are bound to prove the guilt of the defendant beyond a reasonable doubt and a charge as here that the standard of proof is to a 'reasonable certainty' or 'reasonable and moral certainty' permits a lesser standard and constituted error.

Defendant further contends that the court erred when, after the defense on cross-examination of Mrs. McCoy elicited testimony of her initial misidentification of her assailant, it permitted her, over objection, to testify on redirect to her later identification of defendant from a different set of photographs. Defendant asserts that this impermissibly allowed the witness to thus bolster her own testimony. The People urge, however, that defendant by his cross-examination opened the door to such testimony on the theory of 'recent fabrication' and that such testimony was proper in order to rehabilitate the witness.

The general rule is that a witness may not testify that she previously made a photographic identification of the defendant (People v. Baker, 23 N.Y.2d 307, 323, 296 N.Y.S.2d 745, 755, 244 N.E.2d 232, 239). Where a witness cooperated with a police artist in the preparation of a composite sketch of a defendant, a copy of the sketch and the testimony of the witness regarding such assistance is not admissible on direct examination (People v. Griffin, 29 N.Y.2d 91, 93, 323 N.Y.S.2d 964, 965, 272 N.E.2d 477, 478). An exception to the general rule that a witness may not testify to an extrajudicial identification of a photograph exists where the testimony of a witness is 'assailed as a 'recent fabrication', (then) proof of prior consistent statements of the witness, made at a time when there was no motive to falsify, may be received in order to repel such imputation' (Richardson on Evidence (10th ed.) § 519). Thus, in People v. Coffey, 11 N.Y.2d 142, 227 N.Y.S.2d 412, 182 N.E.2d 92, a sketch drawn by a police artist from particulars given him by a witness two months before defendant's arrest was admitted into evidence because defense counsel, by cross-examination of the witness and statements to the court, had endeavored to show to the jury that the witness's testimony was a 'recent...