People v. Walston

• Decision Date: 27 February 1984
• Citation: 472 N.Y.S.2d 453,99 A.D.2d 847
• Parties: The PEOPLE, etc., Respondent, v. Edwin WALSTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 453

472 N.Y.S.2d 453

99 A.D.2d 847

The PEOPLE, etc., Respondent, v. Edwin WALSTON, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 27, 1984.

William E. Hellerstein, New York City (Robin Nichinsky, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Andrew Zwerling, Kew Gardens, of counsel), for respondent.

Before TITONE, J.P., and LAZER, THOMPSON and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered December 15, 1981, convicting him of robbery in third 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 issue of identification of the defendant is critical in this case, as the only evidence linking him to the robbery was the identification testimony of the complaining witness. The witness had an abbreviated view of her assailant and defendant was apprehended very shortly after the crime with only $3 in his pocket and none of the stolen property. On these facts, the identification issue was sufficiently close so that errors committed at trial may have tipped the balance against the defendant and operated to deprive him of a fair trial. Accordingly, we reverse and order a new trial.

The first error was permitting the testimony of a security officer that the complainant had identified defendant near the scene as the man who had robbed her. There can be no question that this statement improperly bolstered the victim's identification testimony and, as such, should have been excluded (see People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841). Moreover, a Trowbridge error cannot be deemed harmless unless the evidence of identity is "so strong that there is no substantial issue on the point", e.g., that the evidence of identification is "clear and strong" (see People v. Mobley, 56 N.Y.2d 584, 585, 450 N.Y.S.2d 302, 435 N.E.2d 672; People v. Napoletano, 58 A.D.2d 83, 91, 395 N.Y.S.2d 469).

The second error was permitting the questioning of a defense witness regarding his failure to come forward with exculpatory information, without laying a proper foundation for that questioning. While the People did establish that this witness had a "reasonable motive for acting to exonerate" defendant, they failed to establish that the witness was aware of the nature of the charges pending against defendant, that the witness had reason to recognize that he possessed exculpatory information, and that the witness was familiar with the means to make such information available to law enforcement authorities (see People v. Dawson, 50 N.Y.2d 311, 321, n. 4, 428 N.Y.S.2d 311, 406 N.E.2d 771). Accordingly, this line of questioning was error.

Finally, we note that the People used several improper methods to impeach defendant's credibility, which further...