People v. Powell — 67 N.Y.2d 661

Majority

p. 661

The People of the State of New York, Appellant, v Eugene Powell, Respondent.

Argued January 6, 1986;

decided February 4, 1986

p. 662

APPEARANCES OF COUNSEL

Elizabeth Holtzman, District Attorney (Rosalyn H. Richter and Barbara D. Underwood of counsel), for appellant.

Joel L. Deckler and Philip L. Weinstein for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant was tried for the robbery of a school teacher which occurred in front of her fourth grade class. The People called as a witness one of the students, 10 years old at the time of trial, who had not made any identification of defendant prior to trial. When the child was unable to identify the defendant, who had shaved off his beard since the time of his arrest, the People were allowed, over objection, to show him a photograph of the defendant taken at the time of his arrest, and to ask him whether he recognized the picture. Under these circumstances, this prompting of an in-court identification through showing this 10-year-old witness the single photograph was improper.

We agree with the Appellate Division that this error, in the context of this case, was not harmless and therefore a new trial is required.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur; Judges Titone and Hancock, Jr., taking no part.

Order affirmed in a memorandum.