WITNESS DID NOT IDENTIFY THE DEFENDANT AT A LINEUP, SAYING ONLY SHE WAS ‘LEANING TOWARD’ CHOOSING THE DEFENDANT, THAT TESTIMONY WAS INADMISSIBLE UNDER CPL 60.25; PROSECUTOR’S REMARKS IN SUMMATION HARSHLY CRITICIZED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined a witness’s testimony about a lineup identification procedure in which the witness indicated only she was “leaning toward” choosing the defendant was inadmissible. The Second Department further criticized the prosecutor’s summation:

… [T]he foundational requirements of CPL 60.25 were not met …. CPL 60.25 is principally concerned with cases where a witness who has validly identified a defendant on a prior occasion is, nevertheless, unable to make a trial identification due to a lapse of memory … permits a witness to testify in a criminal proceeding about his or her own prior identification where the witness is “unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question” … . The second witness never identified the defendant at the lineup and, thus, there was no prior identification for her to testify about under CPL 60.25 … .

Notably, the impact of the second witness’s testimony was highly prejudicial to the defendant. Identification was a crucial and contested issue in this case. Without the second witness’s testimony regarding whom she would “lean toward,” the evidence of identity consisted primarily of the testimony of the first witness, whose veracity and credibility were questioned because he had lied to detectives and an assistant district attorney, absconded from a police station, and received an extremely favorable cooperation agreement in exchange for his testimony at the defendant’s trial. …

… [T]he prosecutor improperly argued to the jury that there were “no coincidences,” that the defendant was not the “unluckiest guy” in Brooklyn, that “the evidence fits together . . . all the pieces connect,” that “all the evidence points directly at [the defendant] . . . because he’s guilty. Because he did these crimes,” … and that the jury would have to do “a lot of mental gymnastics to believe the defendant did not commit this crime.” She vouched for the credibility of the first witness, arguing that if he had been lying, he would have testified that the defendant “stab[bed] two people.” The prosecutor also referred to the defendant as engaging in “machismo” at the time of the events in question. People v Robles, 2019 NY Slip Op 05572, Second Dept 7-10-19