People v. Lee

Oct 11, 2005
Versions:22 A.D.3d 602
801 N.Y.S.2d 753

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant has not preserved for appellate review his contentions that the prosecutor improperly elicited testimony from a detective stating that he arrested the defendant immediately after the defendant was identified in a lineup by the complainant, and improperly asked the complainant whether he recognized the defendant in a lineup. However, we nevertheless review these contentions in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; see also People v Pagan, 2 AD3d 879, 880 [2003]).

The detective‘s testimony implicitly bolstered the complainant‘s testimony by providing official confirmation of the complainant‘s identification of the defendant (see People v Trowbridge, 305 NY 471 [1953]; People v Fields, 309 AD2d 945 [2003] and cases cited therein). A violation of the rule against bolstering may not be overlooked except where the evidence of identity is so strong that there is no serious issue upon that point (see People v Fields, supra). Here, the evidence that the defendant committed the crime was not so overwhelming as to render the error harmless. Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.