Opinion
November 18, 1992
Appeal from the Orleans County Court, Miles, J.
Present — Boomer, J.P., Pine, Lawton, Fallon and Doerr, JJ.
Judgment unanimously reversed as a matter of discretion in the interest of justice and on the law and new trial granted. Memorandum: Evidence that a witness identified defendant from a photo array at the police station is not admissible on the People's direct case (People v Lindsay, 42 N.Y.2d 9, 12; People v Christman, 23 N.Y.2d 429, 433; People v Caserta, 19 N.Y.2d 18, 21; People v Peoples, 142 A.D.2d 610; People v Ball, 89 A.D.2d 353, 354-355). Here, the victim improperly testified that she selected defendant's photograph from an array and a police officer also testified to the victim's selection of defendant's photograph. The prosecutor, in his opening statement, not only referred to the victim's identification of defendant from photographs, but added the further inflammatory note that, after she identified defendant's photograph, the victim broke down and cried.
It is also well settled that third parties may not testify to the identification of defendant by a witness (People v Caserta, supra; People v Trowbridge, 305 N.Y. 471). The police officers, who witnessed the victim identify defendant from a photo array and from a lineup, testified at trial to their observations. That testimony should not have been admitted (see, People v Johnson, 57 N.Y.2d 969; People v Spero, 172 A.D.2d 782, 783, lv denied 77 N.Y.2d 1001). Although defense counsel failed to object to the admission of any of the above-mentioned evidence, we reach the issue in the interest of justice because we conclude that the admission of the improper evidence was not harmless. Identification was the critical issue, and the victim's identification of defendant was not "so strong that there is no serious issue upon the point" (People v Caserta, supra, at 21; see also, People v Blue, 155 A.D.2d 472).
We further conclude that defendant was denied the effective assistance of counsel. Counsel failed to object to the admission of evidence of the victim's identification of defendant from photographs, to the admission of improper bolstering testimony, and to the prosecutor's opening statement. Although the victim testified at the Wade hearing that after the incident she told someone that she couldn't identify her attacker, counsel failed to impeach the victim's trial testimony with her Wade hearing testimony. Counsel further failed to object to an in-court identification of defendant by a Kwik Fill clerk on the ground that the People failed to give proper notice that she had been subjected to pretrial identification procedures. Because the issue of identification was critical, we conclude that defendant did not receive meaningful representation (see, People v Winston, 134 A.D.2d 546).