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.
The child, the People’s sole identifying witness, apparently an emotionally handicapped 10-year-old, told a somewhat confusing, ofttimes contradictory and frequently conflicting story. He lied to the police about his prior knowledge of the attacker because he was frightened, yet seven days later at his grandmother’s house where he no longer felt scared he still did not come forward with defendant’s name until he was asked the leading question.
It must be noted that when the child was questioned as to how he identified the defendant, his answers leave much to be desired. On direct the boy testified to seeing defendant as he pulled the little baby toward the incinerator, but on cross he said that he did not recognize defendant until the defendant came from behind the incinerator “half walking, running, that’s when I saw him” and when he recognized that it was the defendant. Elsewhere he admitted that he saw the defendant’s face for “only a second or short period of time” but the extremely delicate identification process was further thrown off balance by the boy’s statement on cross, “I just staring at it and then I knew it was the defendant. I had an idea. I knew it was his face because the way he wears his hair”
Against this sexual abuse background we proceed to an evaluation of the court’s instruction on identification and alibi.
A reading of the court’s charge on identification makes it clear that it was fundamentally flawed. The court charged: “The ultimate question of the truthfulness of the witnesses’ testimony is for you to decide”. A reading of the record, however, makes it clear that the issue was not whether young Simms was telling the truth, but whether or not he was mistaken. This is the situation found in many, if not most, pure identification cases. The eyewitnesses are usually firmly convinced that they are telling the truth and neither cross-examination nor endless polygraph tests will ever shake that belief. Bitter experience tells us, however, that the real issue is whether or not the witness is mistaken–however honest or truthful that mistake might be. Although defense counsel’s request for an appropriate identification charge was couched in language that was woefully inadequate and grossly insufficient, the court, confronted by these truly extraordinary circumstances, and given the contradictory nature of the eyewitness testimony, should have charged that in weighing the evidence on the issue of identification, the jury should focus on accuracy as well as veracity, weighing all the facts and circumstances surrounding the giving of two different descriptions, one of a stranger, the other of this defendant. This is not statutory rape.
Efforts to control or, at least, to somehow reduce the built-in potential for error in eyewitness cases have long been the concern of the best minds of both bench and bar. Indeed, Part 10, Criminal Jury Instructions, covering identification issues, is now in the process of publication and will soon be widely distributed throughout the State of New York. Predicated upon long, intensive, empirical study by the Criminal Jury Instructions Committee, the publication takes, as its prelude, the worrisome words of warning of the previous case law: ” ‘probably accounts for more miscarriages of justice than any other single factor–perhaps it is responsible for more such errors than all other factors combined.’ “To overcome this constantly recurring danger, the Committee proposes truly commendable pattern jury charges which, in my opinion, warrant the thoughtful consideration and support of all of us who seek justice in this vexing, vulnerable and truly troubled area of the criminal law. *
Moreover the facts here surrounding the identification of the perpetrator were so unusual, complex and confusing as to require careful and prudent judicial guidance which, regretably, was not given. On the contrary, the trial court gave a thin, sparse and inadequate charge on identification and that error was grievously compounded when the court highlighted the defense of alibi by charging: “I instruct you and charge you that an alibi, if you believe it, is a strong defense since, obviously, a person cannot be in two different places at the same time. Therefore, I direct you to examine, scrutinize and weigh carefully the testimony of the alibi witnesses “
In another case, the First Department ruled:
“The court erroneously singled out the issue of alibi and instructed the jury that they were to ‘most carefully scrutinize’ the evidence relating thereto. This instruction did more than merely highlight an aspect of the trial. It placed an unfair burden on this particular theory to the exclusion of all other theories presented.”
This court, in another case, described the problem this way:
“Errors were also committed by the trial court in its charge regarding defendant’s alibi. First, the trial court stated: ‘Evidence with relation to an alibi must be more carefully scrutinized.’ While such charge is not improper per se, the trial court should also have given a like charge with respect to identification testimony so that balance would be properly preserved.” Further on, the court stated:”A Trial Judge’s instructions which are inadequate or not clear, or which tend to mislead, are well-recognized grounds for reversal. Under New York law, a defendant has no burden of proving an alibi to any degree, and an instruction in that regard must be clearly and explicitly given to a jury when alibi evidence has been presented.”
In the case at bar not only was there no direction to subject the identification test to the same searching scrutiny used for the alibi, but also the court neglected to charge that the prosecution must disprove the alibi defense beyond a reasonable doubt.
Although neither objection nor exception was taken to the court’s charge and these errors are therefore not preserved for appellate review as a matter of law, the interest of justice strongly suggests our intervention and reversal as a matter of discretion. The errors here committed can hardly be held to be harmless.
Therefore, the judgment must be reversed and a new trial ordered.
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