Opinion
September 29, 1980
Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered June 22, 1979, convicting him of robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. The complaining witness testified on direct examination that she had been shown a photographic array by a police officer and had failed to select any of the photographs contained therein. We have previously held that such hearsay testimony both improperly bolsters the complainant's in-court identification of the defendant and wrongly suggests that the complainant subsequently identified a photograph of the defendant (People v Rothaar, 75 A.D.2d 652). Moreover, another witness testified to the complainant's prior identification of the defendant in a dry cleaning establishment some months after the crime. This testimony also served to bolster the complainant's in-court identification of the defendant in violation of the principles of People v. Trowbridge ( 305 N.Y. 471). The error was magnified when the prosecutor elicited testimony from this witness describing the complainant's extreme physical reaction upon seeing the defendant (see People v. Dolphin, 77 A.D.2d 571). Because we cannot say that "the evidence of identity is so strong that there is no serious issue upon the point" (see People v. Caserta, 19 N.Y.2d 18, 21), the defendant must have a new trial. We have examined defendant's other contentions and find them to be without merit. Mollen, P.J., Hopkins and Mangano, JJ., concur; Cohalan, J., dissents and votes to affirm the judgment.