A boy, 10 years old, had just finished his lunch, his mother had left the room to go visiting and he was all alone in their fifth floor apartment watching television. He heard a scream and, as he looked out the living room window onto the third floor roof of the adjacent building, some 50-100 feet away, he saw a man wearing blue Lee pants and a plaid shirt, dragging a little baby across the roof. As he watched, they disappeared for a few minutes behind an incinerator but soon reappeared and as he looked on the man pushed the now naked child off the roof and then ran back into the building.
A Queens County Rape lawyer said that within five or six minutes, according to his testimony, the boy saw Housing Authority Police Officers, whom he knew, arrive at the scene on the third floor roof and, at his call, they came over to the apartment and questioned the boy. In substance the tragic events he had just witnessed and offered a description of the perpetrator that he repeated the following day to New York City Police Detective of the Queens Sex crime Squad. That description would fit innumerable young black males, but is at substantial variance with the actual physical appearance of the defendant, who at the time, was 35 years old and who then wore a large “wild” Afro hair style “sticking all up” in a very unruly and lewd messy fashion.
In the days that followed, the boy was interviewed at both the local police precinct where he viewed police photographs on a machine and at another location in the county. He did not, however, recant the description he had given, but instead said that he did not know the perpetrator’s name, and, in fact, told Detective twice that he had never seen the perpetrator before.
Upon the trial, the boy testified that at first he gave the police what he called a “phony description” of the perpetrator because he was scared that he too might be thrown off the roof. He further testified that at the time he accused defendant of the crime, he was at his grandmother’s house and “I wasn’t really that much scared and I didn’t want it to happen to no one else.” There was no doubt in his mind at trial that the defendant was the man who threw the baby off the roof and the boy was the only incriminating witness presented by the prosecution.
Defendant-Appellant, 35 years of age, took the stand in his own defense and testified that he was gainfully employed; that he had never been arrested for or convicted of a crime; and that he was single and lived with his mother in the same building and on the same floor as young boy, whom he had casually known since the boy moved into the building some three years before the trial.
The defendant denied categorically and unequivocally that he assaulted any child at the time and place charged or at any other time. His testimony traced, in some detail, his activities shortly before and at and about the time of the incident when he allegedly committed the crimes charged against him. In substance, he stated that the day in question was a Wednesday, his day off from work. On that morning he returned home from a neighborhood laundromat between 11:45 and 12:00 o’clock noon. He talked to his mother, who was preparing their lunch, and about 12:30 P.M. he took his radio and went outside where he sat on a bench directly in front of his apartment building. In response to his mother’s call about 12:35 he went back upstairs, took 10 to 12 or 15 minutes to eat a sandwich, again took his radio and went directly downstairs to resume his position on the bench.
Defendant’s motion to dismiss was denied and, following summations and charge and after deliberating some three hours and 40 minutes, the jury returned a verdict finding defendant guilty of both attempted murder in the second degree and sodomy in the first degree.
Prior to sentence defendant moved to set aside the verdict on the grounds of newly discovered evidence. Following a hearing, Criminal Term denied the motion upon the grounds that the proffered evidence was neither newly discovered nor would it have been admissible if offered upon the trial.
For reasons hereinafter set forth, the judgment must be reversed.
Prior to the court’s charge, counsel specifically requested an alibi charge and an identification charge. Upon appeal, it is defendant’s prime contention that the charge on both issues was so seriously flawed as to mandate reversal.
In determining the strength of the People’s case it is thus a clear and reasonable inference that the crime took place sometime between 1:30 P.M. and 1:45 P.M. on that hot, sunny September afternoon, at precisely the time defendant was seated on a bench with his alibi witnesses. It is, of course, blackletter law that the significance and the weight of identification and alibi testimony is for determination by the triers of the facts. I have summarized in some detail the alibi testimony and the People’s sole incriminating identification testimony in order to emphasize that this was a pure identification case contradicted squarely by alibi testimony. Because of its persuasive power and inherent unreliability, eyewitness identification is always fraught with peril but when, as here, it is suspect, it is frightening indeed. Under such circumstances the prosecution’s case rests upon a most slender and shaky reed–a situation demanding the utmost caution and one in which so called “harmless errors” are anathema.
To Be cont……
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