Opinion
June 29, 1998
Appeal from the Supreme Court, Queens County (Finnegan, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The hearing court properly denied the defendant's motion to suppress identification testimony since the showup identification was not the product of a police-arranged procedure ( see, People v. Samuels, 162 A.D.2d 559). However, the defendant's conviction must be reversed because of certain trial errors.
The court erred in charging the jury that the defendant's wife was an interested witness as a matter of law ( see, People v. Olivero, 247 A.D.2d 557; People v. Jackson, 80 A.D.2d 904). Further, the prosecutor improperly posed certain questions to the defendant's wife and elicited testimony which made it clear that the defendant was incarcerated. The jury's awareness of his incarceration undermined the presumption of innocence, depriving him of a fair trial ( see, People v. Connor, 137 A.D.2d 546). These errors cannot be deemed harmless (see, People v. Crimmins, 36 N.Y.2d 230).
In light of our determination, it is unnecessary to address the defendant's remaining contention.
Mangano, P. J., Bracken, Altman and McGinity, JJ., concur.