80 A.D.2d 561 | N.Y. App. Div. | 1981
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 27, 1978, convicting him of robbery in the first degree, assault in the first degree, and criminal possession of a weapon 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. On October 18, 1977 two armed men, each holding a child in front of him as a hostage, entered a fruit and vegetable stand, pulled ski masks over their faces, then robbed and shot the owner. At trial the sole issue was identification of the defendant. The People presented two witnesses as to identification, Maralyn Nitschke and Mattie Evans. Nitschke had been inside the stand when the robbers entered and had witnessed the crime. She testified that she had 30 seconds to see the robbers’ faces before they pulled their ski masks down. Most of this time elapsed while the robbers were outside the stand on an 8- to 10-foot rampway entrance. In December, 1977 Detective Alleyne showed Nitschke six photographs at her