From Casetext: Smarter Legal Research

People v. Hunt

Appellate Division of the Supreme Court of New York, Second Department
Nov 15, 1976
54 A.D.2d 947 (N.Y. App. Div. 1976)

Opinion

November 15, 1976


Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 3, 1975 (the date on the clerk's extract is August 5, 1975), convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The showups conducted at the victim's home and at the Criminal Court hearing were unnecessary and therefore impermissible (see Stovall v Denno, 388 U.S. 293). The People have so conceded. However, the independent observations of the witnesses, based upon their recollections of the events of the night the crime was committed, render remote the possibility that the pretrial identifications tainted their in-court identifications (see People v Burwell, 26 N.Y.2d 331, 336; People v Ballot, 20 N.Y.2d 600, 606). It was also error for the trial court to have alluded to the prior identification of a witness and, as conceded by the People, to admit Detective Ryan's testimony regarding the complainant's pretrial identification of defendant (see People v Malloy, 22 N.Y.2d 559; People v Cioffi, 1 N.Y.2d 70). Mr. Murdough's testimony, alluding to his previous identifications of defendant at the Wade hearing and at the postindictment showup in the Criminal Court, was similarly improper. Those were not identifications within the ambit of CPL 60.30 (see CPL 1.20, subds 16, 17; People v Annis, 48 A.D.2d 622, 623). However, in view of the positive and convincing in-court identifications of defendant by Mr. Simpkins, the complaining witness, and by Mr. Murdough, his companion, which were based upon their opportunity to observe defendant on the night of the crime, such error may be treated as harmless (see People v Milburn, 19 N.Y.2d 910; People v Caserta, 19 N.Y.2d 18). We have reviewed these claims of error in the interest of justice, notwithstanding the failure of defense counsel to object at the trial (see People v Kelly, 12 N.Y.2d 248, 250; People v McGill, 47 A.D.2d 961, 962). Hopkins, Acting P.J., Martuscello, Cohalan, Rabin and Titone, JJ., concur.


Summaries of

People v. Hunt

Appellate Division of the Supreme Court of New York, Second Department
Nov 15, 1976
54 A.D.2d 947 (N.Y. App. Div. 1976)
Case details for

People v. Hunt

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SAMUEL HUNT, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 15, 1976

Citations

54 A.D.2d 947 (N.Y. App. Div. 1976)

Citing Cases

People v. Ortiz

However, no objection was taken by defendant's counsel to this testimony. Moreover, with regard to both…