Opinion
July 20, 1970
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 25, 1968, convicting defendant of robbery in the first degree and associated crimes, upon a jury verdict, and imposing sentence. Case remitted to the trial court for a hearing and a determination as to whether the in-court identification of defendant was unduly influenced by prejudicially suggestive identification methods. In the interim, the appeal will be held in abeyance. There were three perpetrators of this crime, all of whom were Negro, whereas the sole witness for the prosecution was Caucasian. The latter had never seen defendant before the day of the robbery and observed him for less than 20 seconds during the commission of the crime. Six weeks later, he identified defendant when shown one photograph, by a policeman, which had two men in it. He identified both men as being principals in the holdup. The witness never picked defendant out of a lineup. There is no testimony that he ever gave the police a description of defendant. He did not see defendant again until 10 months later, which was the first day he testified in this case. At the hearing, the police officer who showed defendant's picture to the witness should be called to testify. The court should confirm, among other things, what the officer said to the witness when showing defendant's picture to him and what the witness' response was at that time. If the witness was shown other pictures, at prior times, this should be clarified as well. Christ, P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.