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THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined Supreme Court should have instructed the jury on cross-racial identification, but further determined the error was harmless:

In People v Boone (30 NY3d 521, 535), the Court of Appeals held that where, as here, “a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.”

… [U]nder the circumstances of the present case, the Supreme Court’s failure to give a cross-racial identification charge constituted harmless error. The defendant identified himself as the individual shown in a surveillance video taken inside a deli adjacent to the smoke shop approximately 40 minutes before the robbery. A surveillance video taken outside the deli at that time showed the individual on the sidewalk walking past the smoke shop and entering the deli. Additionally, the surveillance video taken outside the deli showed the same individual entering and exiting the smoke shop at the exact time of the robbery. Immediately after the crime, the complainant gave a very precise and detailed description of the defendant to a detective, which included a unique identifying characteristic, namely, a brown birthmark on the white of the defendant’s eye. During the arrest process of the defendant, the arresting detective immediately observed the distinctive marking on the defendant’s eye. Under the circumstances, the error in failing to administer the charge on cross-racial identification was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the defendant would have been acquitted if not for the error … . People v Bradley, 2018 NY Slip Op 02481, Second Dept 4-11-18

​CRIMINAL LAW (JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))

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