recognizing that the appellate court can reverse convictions “in rare cases where the charged crime is established by only one witness who provides inherently contradictory testimony at trial”
How later courts described this case
- recognizing that the appellate court can reverse convictions “in rare cases where the charged crime is established by only one witness who provides inherently contradictory testimony at trial”
- expressing skepticism about lineup procedures because, among other concerns, family member with prior exposure to perpetrator had to translate for witness
Written by the judges who cited it.
The opinion
Chief Judge Lippman (dissenting).
The evidence of defendant’s identity as the perpetrator of the robbery of which he was convicted in this case is fundamentally flawed. As the remedy directed by the majority—a new trial to be preceded by an independent source hearing—is inappropriate to the nature of the deficiency of the proof, we respectfully dissent.
In this case, “more than a merely mechanical categorization between law and facts is merited if this court is to perform its great function of review” (People v Santos, 38 NY2d 173, 176 [1975]). In order to determine the sufficiency of the evidence adduced at trial, this Court reviews the record “as a whole and [we are] empowered and obliged to conclude on a deficient record that guilt has not been established beyond a reasonable doubt as a matter of law” (id. at 175 [emphasis added]). The identification evidence in this case “is not insulated from our responsibility of review by the intervention of a jury verdict for which, in a narrow gauge, it may perhaps be said that there was sufficient evidence, when the record as a whole demonstrates that the verdict cannot stand” (People v Gruttola, 43 NY2d 116, 124 [1977, Jones, J., dissenting]). This single eyewitness case “raises a question of law which may not be cured or concealed behind the shield of a jury verdict” (People v Whitmore, 28 NY2d 826, 832 [1971, Breitel, J., dissenting], cert denied 405 US 956 *120 [1972]). Viewing the record as a whole, there is no evidence that defendant committed the crime of which he was convicted other than the victim’s identification which has morphed and become so unrecognizable when compared to its original form that no reasonable jury could find it to be accurate beyond a reasonable doubt. We are deeply troubled by the nature of the identification evidence in this case which “raises a serious question of whether an innocent man has been convicted” (People v Calabria, 3 NY3d 80, 84 [2004, G.B. Smith, J., dissenting]). Accordingly, we cannot in good conscience support any outcome other than dismissal.
There were serious problems with the identification in this case from the time the robbery was first reported during a 911 call by the victim’s son, who impersonated his father and made other statements that admittedly were not true. Shortly thereafter, the victim provided a description to the police of a robber who obviously was not defendant—a man nine inches shorter who, unlike the handicapped defendant, had the full use of both arms. The next day, the victim told his therapist that he had been mugged by a man he recognized from previous sightings in his apartment complex—a fact he had inexplicably failed to mention to the police and that would have rendered such a gross misdescription most improbable. Next, the victim’s son reported to police that the rumor circulating around the neighborhood was that the perpetrator was someone with defendant’s first name (Sebastian) who had also been shot months earlier at a particular time and in a particular place in the same neighborhood. The victim then participated in the police-arranged showing of a photo array (which the majority has deemed to be unduly suggestive) during which he identified defendant as the perpetrator. He later testified at trial that the robber, now identified as defendant, had only one functional arm, and denied ever saying otherwise.
In People v Jackson ( 65 NY2d 265 , 272 [1985]), we held that “[w]hen all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence, the jury is left without basis, other than impermissible speculation, for its determination of either.” The majority relies on People v Fratello ( 92 NY2d 565, 573-574 [1998], cert denied 526 US 1068 [1999]), wherein we held that
“when the jury, acting within its rightful province of determining credibility, weighing evidence and drawing justifiable inferences from proven facts, *121 has an objective, rational basis for resolving beyond a reasonable doubt the contradictory inculpating and exculpating versions of the events given by the witness, its determination of guilt is no longer based on ‘impermissible speculation’ and should be upheld” (emphasis added).
But in this case there was no objective, rational basis for the jury to decide which version of events provided by the victim it should accept. Here, there was only one witness who was positioned to observe the robbery and the account he gave the police officer soon after the robbery was so radically different from the one he gave at trial that we believe the jury did not have a rational basis to choose between or reconcile the two versions. Although there were several witnesses, all of the identification evidence emanated from one source (the victim) and the jury was left with an impossible choice between two completely contradictory and irreconcilable alternatives given by the same person—one of which compelled a verdict of acquittal. The victim’s account was riddled with inconsistencies, so although there is no “per se rule of automatic dismissal because of inconsistency between the witness’s trial testimony and earlier statements” (id. at 574 [emphasis added]), we believe under the circumstances present in this case, failure to dismiss here violates the spirit of the rule against singular reliance on a witness who presents a hopelessly contradictory account of the events giving rise to the conviction. We do not reach this conclusion on the basis of a “subjective assessment of the strength of the People’s case” (majority op at 116) but rather upon an objective view, in light of facts recognized by the majority, pertaining to fundamental flaws in the evidence of defendant’s guilt.
For the foregoing reasons, we dissent and would reverse the order of the Appellate Division, vacate the judgment of conviction and dismiss the indictment.
Judges Ciparick, Read and Pigott concur with Judge Graffeo; Chief Judge Lippman dissents and votes to reverse and dismiss the indictment in a separate opinion in which Judges Smith and Jones concur.
Order reversed, etc.