The judgment of conviction should be reversed and a new trial ordered, since the trial court improperly admitted prior identification testimony from witnesses other than those persons making the identifications.
It has been stated time and again that “ Section 393-b of the Code of Criminal Procedure * * * [permits] a witness to testify to a previous identification by himself, but it does not allow someone else * * * to testify to a declaration of identification by another as evidence of guilt of a particular defendant.” (People v. Cioffi, 1 N Y 2d 70, 73 ; see, also, People v. Trowbridge, 305 N. Y. 471; People v. Gould, 25 A D 2d 160.) It was error to admit such prior identification testimony here. The error here was compounded by the court’s charge wherein it made reference to the hearsay testimony of the prior identifications. (People v. Gould, supra.) That in this case corroboration testimony came from a witness who himself testified to his own separate identification of the defendant does not render the rule any the less applicable. The fact remains that the testimony was still improperly admitted hearsay used to bolster identification.
The People concede that it was error to admit such testimony, but claim it was not prejudicial. I cannot agree. The central issue in the case was identification. Not only did the defendant deny his guilt, but he based his defense on alibi and produced alibi witnesses. Moreover, the testimony of one of the identifying witnesses did not remain unimpeached. Testimony to the effect that the witness had previously failed to identify defendant tended to offset it.
Where identification is so closely and vigorously contested, an error committed in admitting testimony which bolsters identification must be presumed to be prejudicial for it could have been a determining factor in the minds of the jurors.
McNally and Steuer, JJ., concur with Capozzoli, J.; Rabin, J., dissents in opinion in which Breitel, J. P., concurs.
Judgment of conviction affirmed.