People v. Veal

• Decision Date: 20 February 1990
• Parties: The PEOPLE, etc., Respondent, v. Michael VEAL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 602

551 N.Y.S.2d 602

158 A.D.2d 633

The PEOPLE, etc., Respondent, v. Michael VEAL, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 20, 1990.

Philip L. Weinstein, New York City (Beverly Van Ness of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Bill Gianaris of counsel), for respondent.

Before LAWRENCE, J.P., and KUNZEMAN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Giaccio, J.), rendered June 22, 1988, convicting him of robbery in the first degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Farlo, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered, to be preceded, if the defendant be so advised, by a reopened Wade hearing in accordance herewith. The facts have been considered and determined to have been established.

The defendant's conviction was primarily based upon the testimony of the complainant, who had purportedly observed the defendant for a total of about three minutes prior to and during the late-night gunpoint robbery of the complainant's cab and his money. Thirteen days after the robbery, the defendant was arrested immediately after the complainant identified him in a lineup.

We agree with the defendant that he was deprived of a fair trial by various errors that occurred during the pretrial and trial proceedings. First, we find that the defendant's motion, made in a timely fashion, to reopen the Wade hearing should have been granted. Under the circumstances herein, the defendant was entitled to recall the complainant to testify concerning the circumstances surrounding his presence in the parking lot across the street from the police precinct when the defendant was brought into the precinct in handcuffs for the lineup, and whether he saw the defendant at that time (see, People v. Davis, 100 A.D.2d 518, 472 N.Y.S.2d 728; People v. Martin, 35 A.D.2d 786, 315 N.Y.S.2d 201).

At the trial, while the complainant testified to his lineup identification of the defendant, the arresting officer was also permitted to testify, over the defendant's objection, that at the lineup, the complainant was asked a series of questions; to wit, whether he recognized anyone, what number the person he recognized was holding, and from where he had recognized the person. While the police officer did not reveal the answers given by the complainant, he testified over the defendant's objection, that at the end of the lineup, after the complainant answered the questions, the defendant was arrested. The officer's testimony implicitly bolstered the complainant's testimony in violation of the rule enunciated in People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 since it could "have been understood by the jury only as official confirmation of [the complainant's] identification of [the] defendant" (People v. Hall, 82 A.D.2d 838, 839, 439 N.Y.S.2d 661; see, People v. Holt, 67 N.Y.2d 819, 821, 501 N.Y.S.2d 641, 492 N.E.2d 769; People v. Bannerman, 110 A.D.2d 706, 488 N.Y.S.2d 192; cf., People v. Poindexter, 138 A.D.2d 418, 526 N.Y.S.2d 7). Moreover, this preserved error cannot be deemed harmless since the evidence of identity was not "so strong that there [was] no serious issue upon the point" (People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82; see, People v. Blue, 155 A.D.2d 472, 547 N.Y.S.2d 134; cf., People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478). In addition, the trial court improvidently exercised its discretion by permitting the arresting officer to testify, over the...