People v. Moore

• Decision Date: 03 May 1993
• Citation: 597 N.Y.S.2d 444,193 A.D.2d 627
• Parties: The PEOPLE, etc., Respondent, v. Eric MOORE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 444

597 N.Y.S.2d 444

193 A.D.2d 627

The PEOPLE, etc., Respondent, v. Eric MOORE, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 3, 1993.

Philip L. Weinstein, New York City (Kerry Elgarten, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Robin A. Forshaw, Robert J. Valli, Jr., and Sharon Kiel, of counsel), for respondent.

Before ROSENBLATT, J.P., and LAWRENCE, O'BRIEN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Beerman, J.), rendered July 13, 1990, convicting him of robbery in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered. The facts have been considered and are determined to have been established.

We disagree with the defendant's contention that the lineup was unduly suggestive because he was the only person in the lineup with visible bandages. Although his arm was bandaged, it was established that he suffered the injuries necessitating those bandages after the incident in which the complainant implicated him, and there is no evidence that the complainant relied on this fact in identifying him (see, People v. Mattocks, 133 A.D.2d 89, 518 N.Y.S.2d 436; cf., People v. Sapp, 98 A.D.2d 784, 469 N.Y.S.2d 803). Examination of the lineup photograph reveals that the fillers appear to be approximately the same age, height, weight, and build, and had similar skin tone (see, People v. Ruiz, 162 A.D.2d 637, 556 N.Y.S.2d 952; People v. Phillips, 145 A.D.2d 656, 536 N.Y.S.2d 171). Thus, the lineup was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny the defendant due process (see, Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199).

Although the evidence was legally sufficient to prove the defendant's guilt beyond a reasonable doubt (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that there should be a new trial because an erroneous ruling by the court improperly restricted the defendant's right of cross-examination. It was an improvident exercise of the court's discretion to preclude the defense counsel from questioning a police officer about a prior inconsistent statement by the complainant. At the Wade hearing, Officer John Benson testified that, according to his notes, the complainant described her assailant as weighing 250 pounds. At the trial, the complainant described her assailant as weighing 200 pounds, and she denied ever telling a police officer that he weighed 250 pounds. By...