People v. GordonPeople v. Gordon
We begin by noting that before the grand jury, Habib testified that the perpetrator was wearing a mask and he could not make an identification because he did not “remember his face.”1 He was then asked, “at some point did [you] learn what his name was,” and Habib answered, “somebody say his name is Kevin Gordon.” No curative instruction was given regarding this testimony, which was rank hearsay and obviously inadmissible. Moreover, Habib was allowed to testify on four separate occasions before the grand jury that he had been told that the perpetrator‘s name was “Kevin Gordon.” The importance of
“Grand Juror: Did you see his face before he put the mask on?
“Mr. Habib: No.
“Grand Juror: So how did you know who he was?
“Mr. Habib: I remember his name. His name, somebody tell me his name is Kevin Gordon.
“Grand Juror: Somebody told you his name?
“Mr. Habib: Yes, somebody told me his name was Kevin Gordon.
“Grand Juror: But you didn‘t see his face?
“Mr. Habib: No.
“Grand Juror: They were not together?
“Mr. Habib: No. One guy scare, me, Kevin Gordon.”
The magnitude of these errors was compounded when Ahad Shafiq, another store employee, testified before the grand jury that “Habib, he told me it was the same guy that came last night and they usually sell stolen stuff, so I know the guy from over there.”2 Here, for the first time, a curative instruction was given to the grand jury that such testimony was hearsay and could not be considered as evidence of defendant‘s identification as the perpetrator. However, a subsequent witness, Detective Michael Kelly, was allowed to testify that Shafiq, while viewing a video of the robbery, identified defendant as the perpetrator and that both Habib and Shafiq identified Tony Mitchell as the individual who entered the store just prior to the perpetrator and had gone into the restroom shortly before this crime was committed. More importantly, Kelly testified that Mitchell told him that defendant was the masked perpetrator who committed the robbery.3 While the grand jury was again given a limiting instruction regarding this testimony, it was also told that it could “consider it for the fact the name of a suspect was provided to other parties who identified Kevin Gordon without his name as the person who committed this robbery.” Such an instruction, on its face, was confusing and contradictory and, in our view, did little to minimize the prejudice to defendant from the admission of this testimony.
Defendant‘s identification was the principal issue raised by
Given the other issues raised on this appeal, and the fact that defendant may well face another indictment charging him with the commission of this robbery and attempted assault, we must address his contention that the jury‘s verdict was not supported by legally sufficient evidence and is against the weight of the credible evidence introduced at trial. In that regard, Habib testified at trial that moments before the robbery, an individual entered the store wearing a black jacket and asked to use the restroom.4 Shortly thereafter, another man — subsequently identified as defendant — entered the premises wearing a mask over his face and a long black and blue jacket bearing a North Face logo. This individual threatened Habib with a knife, took money from the cash register and fled the premises after jabbing Habib in the stomach with the knife, causing a minor injury. At that point, the other individual left the scene. A surveillance camera in the store captured the incident, but because the perpetrator was wearing a mask, Habib could not make an identification. However, Shafiq, an employee who worked at the store the previous evening, testified that the two men depicted in the surveillance video had been together in the store on prior occasions and, in fact, had been on the premises the prior evening. He said that the man seen in the video going to the restroom had, the night before, been wearing a North Face jacket identical to that worn by the perpetrator of the robbery, and identified defendant as the perpetrator, even though the perpetrator was masked and his face was not visible.
This evidence identifying defendant as the perpetrator of the robbery was corroborated by the testimony of Michael Chase, an acquaintance of defendant who lived in a nearby apartment, who testified that defendant was at his apartment that morning
Based on the foregoing, we need not address the other claims that defendant has raised during the course of this appeal.
Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the judgment is reversed, on the law, and indictment dismissed, with leave to the People to re-present any appropriate charges to another grand jury.