Opinion
May 22, 1967
Judgment of the County Court, Nassau County, rendered July 26, 1966, reversed, on the law, and new trial granted. No questions of fact have been considered. There were several factors present here which made the issue of identification a very close one. We refer to the following: (1) the complainant Dillard never saw or knew defendant prior to the night in question; (2) he saw him that night only "for a couple of seconds" as he was being beaten while lying on the ground, and only in the light of a nearby street lamp; (3) shortly before the incident, the complainant had been drinking and, according to one witness, appeared to be intoxicated (see People v. Ervin, 24 A.D.2d 996); (4) the complainant was unable to recall his activities during the hour preceding the incident; and (5) he saw defendant the next day under suggestive circumstances, i.e., defendant was with someone who was wearing the complainant's missing jacket. Under the circumstances, we feel it was prejudicial error to allow testimony by the police officer Deitrich regarding a prior identification of defendant by the complainant and that this error requires a new trial even though no objection was taken to the testimony ( People v. Trowbridge, 305 N.Y. 471; People v. De Jesus, 11 A.D.2d 711; People v. Thompson, 16 A.D.2d 705). Ughetta, Acting P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.