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COUNTY COURT SHOULD NOT HAVE DENIED THE REQUEST FOR A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, THE COURT OF APPEALS CROSS-RACIAL IDENTIFICATION RULING IN PEOPLE V BOONE APPLIES RETROACTIVELY, HOWEVER THE ERROR WAS HARMLESS (SECOND DEPT).

The Second Department determined County Court should have given the cross-racial jury instruction, but deemed the error harmless:

The defendant correctly contends that the County Court erred in denying his request for a jury charge on cross-racial identification. In People v Boone (30 NY3d 521, 526), the Court of Appeals held that where, as here, “identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification.” Contrary to the People’s contention, Boone applies retroactively to cases pending on direct appeal … .

Nevertheless, the County Court’s failure to give a cross-racial identification charge constituted harmless error. At trial, the complainant identified the defendant as one of the three perpetrators who robbed him inside the office of the car wash. The evidence at trial established that shortly after the robbery, a police officer located the defendant and his accomplices, who matched the descriptions of the perpetrators, in a car. The defendant and his accomplices then led the police on a high-speed car chase and a subsequent chase on foot. When the defendant was apprehended following the foot chase, the police searched him for weapons, and the defendant stated, “they’re not on me, the guns are in the car.” The guns and proceeds of the robbery were found in the car from which the defendant and his accomplices fled. Additionally, money that the complainant had withdrawn from the bank earlier that day, which was bound with blue bands, was recovered from a jacket the defendant had discarded as he was running from the police. Under these circumstances, the error in failing to give 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 Jordan, 2018 NY Slip Op 08956, Second Dept 12-26-18

 

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