THE PEOPLE &C., RESPONDENT, v. JAMES MOSS, APPELLANT.
80 N.Y.2d 857, 600 N.E.2d 224, 587 N.Y.S.2d 593 (1992).
July 2, 1992
2 No. 142
Decided July 2, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Richard A. Mastrocola, for Appellant.
Moira E. Casey, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed and a new trial
ordered.
A Brooklyn grocery store was robbed on July 8, 1988 while the owner
and his clerk, Nasser Saleh, were working. At that time, both
witnesses provided police with a description of the perpetrator. Four
days after the robbery, the store's owner observed defendant on the
street and summoned a nearby police officer. Saleh, from inside the
store, observed the police chasing defendant down the block just prior
to his arrest. The next day, the police showed Saleh a photograph of
defendant taken shortly after his arrest, and Saleh identified him as
the robber.
The People failed to provide timely notice of the photographic
identification (CPL 710.30). As a result, the trial court suppressed
Saleh's in-court identification testimony but permitted him to say
that the person he observed being chased down the block on July 12
participated in the July 8 robbery. We agree with defendant that this
was reversible error as, without the improper identification
testimony, the case was based entirely on the testimony of the store
owner (see, People v Green, 78 NY2d 1029). Moreover, on a second
related robbery charge, as to which only the owner testifed, the jury
acquitted defendant.
While the witness was properly allowed to testify concerning his
description of the robber given to the police prior to the potentially
tainted identification procedure, there is no evidence in this record
that defendant ever communicated to the police--prior to that
identification--his perception that the person he saw being arrested
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. JAMES MOSS, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
A Brooklyn grocery store was robbed on July 8, 1988 while the owner and his clerk, Nasser
both witnesses provided police with a description of the perpetrator.
the store's owner observed defendant on the street and summoned a nearby police officer.
The next day, the police showed Saleh a photograph of defendant taken shortly after his
the trial court suppressed Saleh's in-court identification testimony but permitted him to say
We agree with defendant that this was reversible error as, without the improper
While the witness was properly allowed to testify concerning his description of the robber
there is nothing in the record to demonstrate that the perception testimony was untainted by
Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock and Bellacosa concur.
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