People v. Phillips

Murphy, P. J., and Carro, J., dissent in a memorandum by Murphy, P. J., as follows:

On the afternoon of May 3, 1976, Maria Figueroa entered the elevator in her building at 210 East 102nd Street. Three men and one teenager entered the elevator with her. One man exited at the fourth floor. As the elevator then proceeded toward the 10th floor, a second man, alleged to be defendant Phillips, held a knife to Figueroa’s throat. Defendant’s accomplice, an unidentified third man, also held a knife to the throat of a *738teenager named Daren Johnson. The two robbers took Figueroa’s pocketbook and exited on the 10th floor. Figueroa pursued the two robbers down the staircase. The defendant’s accomplice escaped. However, Figueroa and her neighbors pursued the defendant to a nearby building located at 220 East 102nd Street. A subsequent search of that building by the police failed to reveal the presence of the defendant or any other suspect. Two weeks after the robbery, Figueroa saw the defendant walking in the community. She stopped a passing police car and the officers then arrested the defendant. Daren Johnson, the teenager, was not able to identify the defendant at trial. Thus, the defendant’s conviction hinged entirely on the identification made by complainant Figueroa. She originally told the investigating officers that the robber was (i) black, (ii) 25 to 29 years old, (iii) 5 feet, 10 inches tall, and (iv) about 160 pounds in weight. The evidence indicated that, at the time of his arrest, the defendant was (i) black, (ii) 32 years old, (iii) 5 feet, 11 inches tall, and (iv) 175 pounds in weight. When he was apprehended, defendant was wearing a beige windbreaker that had been described by Figueroa in her initial accounts to the police. Figueroa’s testimony at trial corroborated these descriptive details in the police reports. It should also be emphasized that the defendant resided at 220 East 102nd Street, the building that had been the subject of the search after the robbery. Hence, there was sufficient evidence in the record to sustain the conviction. Nonetheless, some doubts were presented at trial as to the accuracy and reliability of Figueroa’s identification of the defendant. Firstly, she was not wearing her glasses at the time of the robbery. Secondly, the incident in the elevator only lasted about 12 seconds. Thirdly, there were significant omissions in the written reports made by Officer Hunt and Detective Anderson after the robbery. Officer Hunt had prepared a UF-61 form and an incident report after speaking with Figueroa. Neither of these reports mentioned that the robber had a (i) small goatee, (ii) "chinky” eyes, and (iii) glasses. At trial, Hunt testified that Figueroa had orally informed him of these details but that he did not record them. Figueroa confirmed these descriptive details in her own testimony, and additionally, mentioned that the robber had a mustache. Hunt’s reports did not mention that the robber had a mustache nor did he testify that Figueroa had orally informed him of that descriptive detail. Detective Anderson had prepared two DD-5 forms in the course of his investigation. The information recorded by Anderson on those forms was substantially the same as that recorded on Hunt’s forms. Anderson did not clearly recall Figueroa’s description of the robber. He believed that the description included a goatee, but did not include glasses or a mustache. In this evidentiary setting, the defendant called an alibi witness named Olga Benitez. This witness was defendant’s "next door” neighbor on the 14th floor of 220 East 102nd Street. Benitez stated that she was standing in front of her building at the time of the robbery. An unknown individual, carrying a pocketbook, ran into the building. She was positive that this individual was not the defendant. Although Benitez later learned that the defendant was arrested for this robbery, she never reported her observation to the police or the District Attorney. In the course of her testimony, Benitez noted that the robber had no facial hair; the defendant, to her knowledge, had never worn a goatee. During the cross-examination of Benitez, the following questions and answers were propounded: "Q Well, do you remember on May 17th when Reginald Phillips got arrested? A No. I wasn’t with him. Q When did you first hear he got arrested? A His sister came to the house one day. Q When did you first hear he got arrested? A A couple of days after. Q Then you went to the police and told the police this is the wrong man. I was there *739and I saw him and it isn’t him? A No, I didn’t. Q You came down to the District Attorney’s office and told the District Attorney you’re prosecuting the wrong man? Miss Sadow: I object. Q When, for the first time did you tell any public official that the wrong man was being prosecuted? Miss Sadow: Objection. The court: I’ll permit it. A When the Legal Aid wrote me a letter and asked me would I come down and be a witness. Q You didn’t go to the District Attorney’s office and you never went to the police and you never told anybody about this? A No. Miss Sadow: Objection. That was not the testimony. The court: Sustained as to form, as to the last question.” In his summation, the prosecutor made the following remarks concerning the testimony of Benitez: "Here is somebody she knows who is arrested for a crime and she claims she knows that he didn’t do it. He wasn’t the man. Never told anybody. Never told anybody and that is incredible. Can you believe that that woman sat with that information for a year, over a year, and never told the District Attorney about it?” An alibi witness may properly be cross-examined as to when and to whom the witness first disclosed the fact of the alibi. The circumstances of such revelation obviously bear upon the witness’ testimony. Of course, this line of cross-examination may exceed the bounds of propriety. Thus, it is improper to conduct a cross-examination in such a way as to suggest that there is some duty on the part of the alibi witness to report to the prosecution rather than to the defense. (People v Colarco, 68 AD2d 430, 431-432.) No inference should be drawn from the fact that a person does not go to the police or the District Attorney with an alibi defense. (People v Milano, 59 AD2d 852; People v Hamlin, 58 AD2d 631.) The question of whether a particular series of questions permits an improper inference to be drawn by the jury must be determined on the facts in each case. (People v Colarco, supra, p 432.) It should be emphasized that defense counsel preserved this issue for appellate review by making timely objection at trial. (People v Maschi, 49 NY2d 784.) In the excerpt quoted above, the prosecutor asked Benitez a series of rhetorical questions as to when she reported the alibi to the police and the District Attorney. The prosecution contends upon this appeal that these questions were aimed at impeaching the credibility of Benitez. Concededly, the answers given by Benitez suggested that the alibi defense might have been recently fabricated. Nevertheless, the prosecution’s contention evades the more narrow issue of whether Benitez was improperly impeached by this line of questioning. The tenor of the prosecutor’s questions undoubtedly left the jurors, impressionable laymen, with the belief that Benitez had a duty to report the alibi to the authorities. Thus, the jury was erroneously permitted to infer that the defendant was guilty from Benitez’ belated disclosure of the alibi (People v Milano, supra, p 853). This error was compounded when the prosecutor developed it in his summation. The defendant’s conviction was based solely upon the complainant’s identification testimony. For the reasons previously discussed, that testimony was suspect as to its accuracy and reliability. Since the evidence in this case was far from overwhelming (People v Rivera, 70 AD2d 625), the errors in the cross-examination and the summation can not be considered harmless beyond a reasonable doubt (cf. People v Burgos, 69 AD2d 783 [Bloom, J., concurring]). Because the defendant was deprived of a fair trial, the judgment of the Supreme Court, New York County, rendered October 13, 1977, convicting him of robbery in the first degree and sentencing him to an indeterminate term of imprisonment for five years, should be reversed, on the law, and a new trial should be ordered.