People v. Howard

Rosenblatt, J.,

dissents, and votes to reverse the judgment of conviction and to dismiss the indictment with the following memorandum: I recognize fully that the majority position is based on the well-established proposition that a legal case may rest on the identification testimony, without more, of a single eyewitness (People v Arroyo, 54 NY2d 567, 578, cert denied 456 US 979). We have acknowledged this concept time and time again (see, e.g., People v Hooper, 112 AD2d 317; People v McCrimmon, 131 AD2d 598; People v Azzara, 138 AD2d 495) and, as an abstract rule, I agree with it.

Those experienced in the investigation and trial of criminal cases will be the first to say that the one-on-one identifications are the most troublesome when, as here, they are unaccompanied by supporting proof. However, often where there is no supporting proof, the identification is compelling and adequate. In this case, the circumstances surrounding the identification of the defendant leave me with the disquieting feeling that an innocent man may have been convicted.

It is not a question of poor lighting, or a fleeting view, or other conditions that sometimes undercut identifications. Rather, the victim, an intelligent, well-educated, and articulate person, gave the police what was, in some ways, an uncommonly detailed account of the assailant, including his facial features, his teeth, and, as she described it, his "poofedup” hair above his white bandanna.

The robbery occurred on July 13, 1985. Shortly after the robbery, the victim told the police that she saw her assailant’s eyes and noticed nothing unusual about them. She added that her assailant was clean shaven, a description somewhat at odds with her trial testimony. When the defendant was arrested he was anything but clean shaven; he had a mustache and beard.

The victim selected the photograph of the defendant from a photographic array. On September 3, 1985, almost two months after the robbery, she identified him in a lineup. When she viewed the lineup, she noticed that the person she selected— *907the defendant—"had a funny eye”. This feature was so obvious to her that she noticed it at the lineup when she was at a distance far greater than what she described as the lV^-to-2feet distance between her and her assailant at the time of the robbery.

In March 1984 the defendant was totally blinded, from lye, in his right eye, and partially blinded in his left eye. Whether it be described as permanently, partially closed, with scar tissue, or, as described in the defendant’s brief, as "grossly disfigured”, and "welded shut”, there is no doubt that it was a striking characteristic. It was not in the photograph (which was taken before the blinding incident), but it was immediately evident to the victim when she viewed the defendant in the corporeal lineup.

Moreover, while the victim described her assailant’s hair as "poofed up”, defense witnesses testified that the defendant’s father died on July 12, 1985, the day before the robbery, and that the defendant’s head was shaved bald for the funeral, possibly for religious reasons. When the defendant was placed in the September 3, 1985 lineup, his hair was undeniably close cropped.

There was also alibi evidence presented by the defendant. If the identification testimony had been compelling, the court’s failure to give an alibi charge would be of no great consequence, considering that one was not requested. In this case, the lack of an alibi charge was significant, and in this regard I note that this court has reversed convictions in the exercise of its interest of justice jurisdiction where an alibi charge was appropriate but was neither sought nor given (People v Klemm, 124 AD2d 826; People v Vera, 94 AD2d 728).

All there is to link the defendant with this robbery is an identification originating from a photographic array in which the defendant’s photograph differed from his appearance on the date of the robbery, and a lineup identification in which the victim, for the first time, noticed a highly distinctive facial feature. The risk of misidentification is too great, in my view, to allow the conviction to stand (People v Crum, 272 NY 348).

Even though the evidence could technically make out a legal case, I would reverse the conviction and dismiss the indictment on the facts and as a matter of discretion in the interest of justice (CPL 470.15 [3] [c]; People v Crudup, 100 AD2d 938; People v McCann, 90 AD2d 554; People v Kidd, 76 AD2d 665).