Rare Reversal for Lack of Identification Evidence

This week, the Second Department reversed a conviction for Robbery in the Second Degree and Assault in the Third Degree, using its weight-of-the-evidence review power to conclude that there was a lack of evidence to identify the defendant as the perpetrator of the crime.  The court held:

Only one of the six
eyewitnesses proffered by the People affirmatively made an in-court
identification of the defendant as the assailant, and that witness
qualified his identification by stating: "I am not 100% positive . . .
but I am pretty sure." Moreover, the out-of-court photographic
identifications did not prove the defendant's identity as the assailant
beyond a reasonable doubt. Two witnesses were asked by the police to
make an identification using a photographic array containing six
photos: one witness did not recognize the assailant in any of the
photos and the other witness selected two photos of people who "kind
of" looked like the assailant. Although one of the two photos was an
image of the defendant, the witness told the police that the assailant
"might be" the person in the other photo that was not the defendant.
Two other witnesses were asked by the police to identify the assailant
using a Middletown High School yearbook: one witness identified the
defendant as the assailant and the other witness (who was the only
witness to later identify the defendant in court) did not recognize
anyone. Detective Thomas Miller testified that the investigation
focused on the defendant because the vehicle from which the assailant
exited was traced to the defendant's address. The defendant admitted at
trial that he was present in the vehicle while the crimes took place,
but contended that his cousin, who is similar in appearance, was the
assailant. A photograph of the defendant's cousin was introduced into
evidence. A second defense witness, whose physical description matched
witness descriptions of a person at the scene of the crime,
corroborated the defendant's testimony. Under these circumstances, we
conclude that the verdict of guilt was against the weight of the
credible evidence.

(LC)

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