Opinion
March 16, 1949.
Present — Taylor, P.J., McCurn, Love, Kimball and Piper, JJ.
Judgment of conviction and order denying motion for a new trial reversed on the law and facts and a new trial granted. Memorandum: The defendant has been convicted of attempted rape in the first degree. The only witness who, in any way, connects the defendant with the crime is the complainant. Upon the whole record, we are of the opinion that the verdict is against the weight of evidence and that there were errors on the trial which, although no exceptions were taken, require a reversal of the judgment. Since the only witness who could identify the alleged assailant was the complainant and in view of the evidence of witnesses for the defendant that he was not at the scene of the crime, the identification of the defendant as the assailant was of prime concern. The defendant was exhibited to the complainant at the police station, not with others, but alone, and was required to dress in clothing which corresponded to complainant's previous description of the clothing of the assailant. He was required to remove his glasses which he constantly wore. We think the method used to identify the alleged assailant was improper. ( People v. Gerace, 254 App. Div. 135.) The complainant testified upon the trial as to her identification of defendant at the police station. She said "they had this Clarence Conley dressed as I told them". She was also permitted to testify that after the identification, she had a conversation with the chief of police in which she told him that defendant was the man. Her recital, on the trial, of what occurred at the police station was error which we cannot say was harmless. ( People v. Jung Hing, 212 N.Y. 393, 401.) We think that justice requires that the judgment of conviction be reversed, that the order denying the motion for a new trial made pursuant to section 465 of the Code of Criminal Procedure, be reversed and a new trial granted. All concur, except Taylor, P.J., who dissents and votes for affirmance on the ground that the verdict is amply supported by the evidence. (The judgment convicts defendant of the crime of attempted rape, in the first degree. The order denies defendant's motion for a new trial.)