The Third Department determined it was reversible error to allow a police officer’s testimony identifying defendant as a person depicted in surveillance video from a store about an hour before the robbery of which defendant was convicted. Defendant claimed he was shopping in the store at the time of the robbery. The evidence of defendant’s participation in the robbery was not overwhelming. The trial judge had ruled the video could be introduced in evidence but no testimony identifying the defendant as a person depicted in the video could be offered. At trial, however, over objection, Cornell, a police officer, was permitted to identify the defendant in the video:
… [E]arlier in the proceedings County Court had ruled that, to the extent that the People were going to offer such surveillance footage into evidence, they were precluded from offering testimony identifying defendant in such footage. Cornell then testified on direct examination that he obtained the video surveillance footage from the store where defendant had claimed to have been shopping at the time of the robbery and described a group of five people that entered at approximately 6:20 p.m. and left at approximately 6:45 p.m., approximately one hour before the robbery. Upon the People’s question, “And the group being [defendant], three women and a toddler,” Cornell answered, “That’s correct.” Defendant objected to the question and the answer, which was overruled by County Court. Inasmuch as this testimony violated County Court’s prior ruling because it identified defendant as being the individual in the video who was accompanied by three women and a toddler, it should have been precluded.
Based upon the record before us, County Court’s evidentiary error in permitting Cornell’s identification testimony of defendant in the surveillance video cannot be deemed harmless. Specifically, under the particular factual circumstances of this case, the evidence of defendant’s guilt, although legally sufficient to support the jury’s verdict, was not overwhelming given the lack of direct evidence linking defendant to the crime and the conflicting witness testimony regarding defendant’s presence at the crime scene … . People v Myrick, 2016 NY Slip Op 00217, 3rd Dept 1-14-16
CRIMINAL LAW (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)/EVIDENCE (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)