THE ARRESTING DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE PERSON DEPICTED IN SURVEILLANCE VIDEOS AS THE DEFENDANT, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the arresting detective should not have been allowed to identify the person depicted in two surveillance videos as the defendant:

The court should not have permitted the arresting detective to give lay opinion testimony that defendant was the person depicted in two surveillance videos. In this case, the alleged difference in appearance — the addition of eyeglasses — was de minimis, and the jury had access to photos of defendant without eyeglasses … . The People do not point to any case in which lay opinion testimony was permitted based on such a slight change in appearance. Moreover, “no other circumstance suggested that the jury, which had ample opportunity to view defendant, would be any less able than the [officer] to determine whether he was seen in the videotape” … . Indeed, at the time of trial, the arresting detective was a 20-year veteran of the force and had 14 years experience investigating robberies and burglaries on the Lower East Side, where the incident occurred. He had made nearly 600 arrests and assisted in approximately 200 others. Stating twice that the perpetrator in this case was defendant carried significant weight in the eyes of the jury. Although the court provided limiting instructions, “[t]ruly prejudicial evidence cannot be erased from a juror’s mind by the court’s instructions” … . People v Challenger, 2021 NY Slip Op 06927, First Dept 12-9-21