Opinion
August 14, 1995
Appeal from the Supreme Court, Queens County (Cooperman, J.).
Ordered that the judgment is reversed, on the law, the complainant's showup identification is suppressed, and a new trial is ordered, to be preceded by an independent source hearing.
The defendant was arrested after fleeing from the stolen car in which he had been a passenger. The police found an illegal gun in the car. The defendant claims that he did not know the car was stolen. According to the defendant, the driver of the car picked him up before the arrest, and told him that he had gotten the car from a friend.
The car was stolen almost two hours before the arrest, at a location approximately two miles away. The police transported the complainant, who had been at the precinct, to the arrest location. A showup was conducted, and the complainant identified the the handcuffed defendant, who was being held, together with the handcuffed driver of the car, in the vicinity of the stolen vehicle by several police officers. Under the circumstances of this case, the showup identification should have been suppressed (see, People v. Johnson, 81 N.Y.2d 828; People v. Riley, 70 N.Y.2d 523, 530; People v. Adams, 53 N.Y.2d 241, 248). The complainant never testified at the Wade hearing. Therefore, a de novo hearing to determine whether or not the complainant had an independent source for his identification must be held prior to a new trial (see, People v. Burts, 78 N.Y.2d 20).
Since a new trial must be held, we take this opportunity to point out some unacceptable practices engaged in by the prosecutor at trial. Chief among these was the prosecutor's repeated suggestions during cross-examination and summation argument that either the complainant was correct in his identification of the defendant as one of the perpetrators, or he was lying. This tactic has been repeatedly condemned by this Court (see, People v. Leuthner, 216 A.D.2d 327). Similarly, the prosecutor made excessive references to the defendant's criminal record, improperly implying that the defendant's criminal record indicated a likelihood that he committed the crimes charged (see, People v. Wright, 41 N.Y.2d 172, 175; People v. Robinson, 191 A.D.2d 595; People v. Stewart, 153 A.D.2d 706).
In view of the foregoing, we need not reach the defendant's remaining contentions. Miller, J.P., O'Brien, Ritter and Goldstein, JJ., concur.