People v. Landor
| Decision Date | 03 February 1983 |
| Citation | 92 A.D.2d 625,459 N.Y.S.2d 916 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kevin LANDOR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
E. Stewart Jones, Jr., Troy, for appellant.
Sol Greenberg, Albany County Dist. Atty., Albany (F. Patrick Jeffers, Asst. Dist. Atty., Albany, of counsel), for respondent.
Before MAIN, J.P., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the County Court of Albany County, rendered July 24, 1981, upon a verdict convicting defendant of two counts of the crime of sodomy in the first degree, one count of rape in the first degree and one count of aggravated sexual abuse.
Defendant was convicted of crimes stemming from a violent sexual attack on Susan Hickok in the early morning hours of November 25, 1979 in her apartment. Crucial to defendant's conviction was acceptance by the jury of the victim's identification of defendant and its repudiation of defendant's alibi defense. Defendant alleges several instances of error committed during the course of trial which he urges denied him due process of law and a fair trial. We will discuss those which we deem to merit consideration.
Defendant contends that the victim's identification of him was flawed in that the identification procedures utilized by the police were unduly suggestive. We disagree. The photo arrays from which the victim selected defendant on two different occasions consisted of photos of males similar in appearance and age to defendant. At least one other male in the grouping wore clothes of the same type as did defendant. This nullified any suggestiveness stemming from the fact that defendant's clothes in the picture were similar to the apparel worn by the perpetrator of the crime. The showup of defendant also was not unduly suggestive. Defendant appeared in a room in which there were some 200 people. The victim immediately pointed him out without any prompting. We deem the photo and showup identification to be entirely proper.
It is noteworthy, too, that the victim had adequate opportunity to view her attacker face-to-face on two occasions when he appeared at her apartment door. These instances were of sufficient duration to constitute an independent basis to justify an in-court identification of him by Ms. Hickok irrespective of the photo and showup identifications.
There are other problem areas which surfaced in the course of the trial requiring discussion. Defense counsel requested instruction from the court regarding the alibi defense offered by defendant. The jury was charged with the function of weighing Ms. Hickok's identification of defendant vis-a-vis testimony of defendant's witnesses relevant to his alibi defense. The court was obliged to include in its charge a statement of the fundamental legal principles applicable to the case so as to assist the jury in discharging its function (see CPL 300.10). Where, as here, we are concerned with a pure identification case contradicted by alibi testimony, the situation demands utmost caution. We deem the court's instructions on identification to be legally sufficient but, upon the retrial, which we determine to be necessary, it is indicated that a more thorough instruction on identification be given in the interest of justice.
Regarding the alibi defense, the court clearly erred in its instructions. The court charged the jury that:
The defendant claims that he was not present at the scene of the crime and has offered testimony to show that he was elsewhere. In the law this is known as an alibi defense. As I have previously charged you, the People have the burden of establishing the guilt of the defendant beyond a reasonable doubt. The defendant is not required to prove his innocence. If the evidence as to the alibi, if believed by you, the jury, when taken into consideration with all of the other evidence raises a reasonable doubt as to the defendant's guilt, he is entitled to an acquittal.
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...to meet their burden of proof and the defendant, under such circumstances, must be found by you to be not guilty". In People v. Landor, 92 A.D.2d 625, 626, 459 N.Y.S.2d 916, the court had before it a charge that in substance said the same thing. In reversing the conviction, the court said: ......
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