People v. Vasquez

• Decision Date: 27 May 1986
• Citation: 120 A.D.2d 757,502 N.Y.S.2d 282
• Parties: The PEOPLE, etc., Respondent, v. Nestor VASQUEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 282

502 N.Y.S.2d 282

120 A.D.2d 757

The PEOPLE, etc., Respondent, v.Nestor VASQUEZ, Appellant.

Supreme Court, Appellate Division Second Department.

May 27, 1986.

Philip L. Weinstein, New York City(Harold V. Ferguson and Juliet Neisser, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Anthea H. Bruffee, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, WEINSTEIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Vinik, J.), rendered June 2, 1983, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.

The cumulative prejudicial effect of several errors deprived the defendant of a fair trial.On two occasions, the complaining witness testified that he went to the police precinct to see photographs.On each occasion, defense counsel moved for a mistrial, but instead the trial court gave a curative instruction.Nevertheless, once the jury had become aware that there had been a photographic identification, the inference that the defendant had prior criminal involvement was obvious, and the inference was accentuated since the defendant failed to take the stand (see, People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82).

It was also improper for the arresting officer to testify, over objection, that he arrested the defendant after conferring with the complaining witness and determining that the witness was certain of his identification.This testimony amounted to implicit bolstering and was error (see, People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478;see also, People v. Holt, 67 N.Y.2d 819, 501 N.Y.S.2d 641, 492 N.E.2d 769[1986] ).Where, as here, a conviction is based solely upon identification testimony by a single witness who made a brief observation of his assailant, any error which is apt to enhance the weight of such testimony may not be disregarded as being merely technical in nature (see, People v. Trowbridge, 305 N.Y. 471, 477, 113 N.E.2d 841).Moreover, the case involved only the issue of identification, yet the jury indicated it was unable to reach a unanimous verdict after six hours of deliberation.Thus, the bolstering error cannot, on these facts, be considered harmless (see, People v. Johnson, supra, ...