Opinion
November 28, 1972
Judgment, Supreme Court, New York County, rendered on February 29, 1972, convicting defendant, after jury trial, of attempted robbery in the first degree, and other crimes, and sentencing defendant to prison for indeterminate terms with a maximum of 15 years, unanimously affirmed. The main issue at the trial was the issue of identification. On appeal defendant urges that the court and the prosecutor improperly suggested to the jury that the identification by the complaining witness should be weighed in light of the fact that the complainant and the defendant were black. We have stated previously, and again reiterate, our strong disapproval of the jury appeal tactic of using racial similarity as a means of identification evaluation. We have said that comparisons in summation of the ethnic background of a witness and of a defendant on the issue of identification are improper ( People v. Fisher, 19 A.D.2d 613). See, also, People v. Burris ( 19 A.D.2d 557, 558) where the court, in ordering a new trial, condemned vigorously a suggestion to the jury by the court and the Assistant District Attorney "that the identification of the defendant by the complaining witness should be weighed in the light of the fact that both the defendant and the witness were Negroes." However, the evidence here is clear and convincing, and the totality of the evidence persuades us that the error was not so prejudicial as to preclude affirmance. Other points raised by defendant have been considered and are found to be without merit.
Concur — Stevens, P.J., McGivern, Markewich, Nunez and Eager, JJ.