Opinion
March 6, 1961
Appeal by defendant from a judgment of the Court of Special Sessions of the City of New York, Borough of Queens, rendered September 19, 1960, convicting him of assault in the third degree and sentencing him to serve a term of 30 days in the Workhouse. Defendant is presently at liberty on bail pursuant to a certificate of reasonable doubt. Judgment reversed on the law and the facts and a new trial ordered. Defendant testified in his own behalf. He denied that he had committed the crime and produced four witnesses, all apparently respectable people unrelated to him and with no apparent motive to testify falsely, who stated that defendant was in their company at the home of one of them for a considerable time prior to and after the time when the crime was committed. According to their testimony defendant was a person of excellent reputation and he had had no previous trouble with the law. The only witness who testified as to the commission of the crime and who identified the defendant as the person who had committed it, was the complaining witness. She first identified defendant after she had been shown a picture on an identification card which the police had taken from him while he was in their custody. Defendant was the sole person presented to her for identification. A police officer was permitted to testify that at the time of the arrest he "had her identify him, and she positively said it was him." The admission of this hearsay evidence as to prior identification was erroneous ( People v. Trowbridge, 305 N.Y. 471). In a case as close as this, the error was prejudicial and requires reversal in the interest of justice, even though upon the trial there was no objection by defendant's attorney to the admission of the evidence (see People v. De Jesus, 11 A.D.2d 711, and cases cited). Nolan, P.J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.