People v. Ramirez

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered March 6, 1985, convicting him of burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony. Ordered that the judgment is reversed, on the law, and a new trial is ordered. A review of the trial testimony indicates that a close question of the identification of the perpetrator was presented for the jury’s consideration. Specifically, the complainant testified that he had discovered two men, who were "not very tall, not too young, not too old”, attempting to burglarize his apartment. He observed the two men, seeing the face of only one of them from three to four meters away, "[f]or a few seconds, not very long”, before he ran out of the apartment. As the complainant ran downstairs to the superintendent’s apartment, he caught a view for "two, [or] three seconds” of the two men running down the stairs, but he did not see their faces at that time. Thereafter, the complainant and the superintendent’s son chased the two fleeing men. During the chase, which lasted about two to three minutes, the complainant noticed that the man whose face he had seen [735] earlier wore a red shirt, blue jeans and sneakers. At one point during the chase, the red-shirted man turned back his head to look at the complainant, but by that time the distance between them was "far”. According to the superintendent’s son, he only saw the backs of the men during the chase; he never saw their faces. One of the men wore a red and white shirt and jeans. Although the complainant testified that this red shirt had "little tiny stripes”, the superintendent’s son described the pattern as "checkered”. Further, while the complainant described the other man’s shirt as white, the superintendent’s son testified that the other man’s shirt was dark blue. When the two fleeing men split up, the superintendent’s son continued to chase the one with the red checkered shirt, but eventually lost sight of him after about two minutes. The closest he got to either man was approximately 122 feet. About two minutes after he had lost sight of the man with the red checkered shirt, the superintendent’s son caught sight of a man walking out of a yard. The man was reading a newspaper and walking along "[l]ike a normal person, average” and he was not breathing heavily. The superintendent’s son recognized him as the fleeing man because he had the same clothes (red checkered shirt) and hair ("curly” in the back) as the man he had been chasing. About seven or eight blocks from the apartment building, the superintendent’s son, who had been walking behind the red-shirted man, stopped a police car and told Police Officer Robert Murray that the man walking on the sidewalk 25 feet away had burglarized an apartment in his building. Murray stopped the red-shirted man and asked him what he was doing in the area. The man looked at Murray as if "bewildered” and answered by "mumbling” in an "incoherent manner” but he did not try to flee. The superintendent’s son claimed that this red-shirted man was the man he had chased, and that he had never seen his face but he saw his clothes. The superintendent’s son identified the defendant as the man Murray had stopped on the street. He could not identify the defendant as the burglar. Subsequently, the complainant was taken to the precinct where he identified the defendant as one of the men that was in his apartment. According to the complainant, the defendant was wearing the same shirt as he wore in the complainant’s apartment; no other persons at the station house were wearing red shirts. However, upon seeing a photograph of the [736] defendant taken on the day of his arrest, the complainant initially stated that while the face was the face of the burglar, the defendant was not wearing the same shirt. Then he changed his testimony and claimed that it was the same shirt, but that the shirt worn by the burglar "looked more red”, and then he conceded that he was not sure concerning the shirt and only remembered that its color was red. Finally, while the complainant testified that Police Officer William Landy, who had conducted the showup, claimed that the defendant had been running, based upon feeling the defendant’s heartbeat, that testimony constituted inadmissible hearsay. Further, Officer Landy testified that he did not recall whether the defendant had been breathing heavily upon his arrest. Moreover, Landy did not testify to feeling the defendant’s heartbeat or to stating that the defendant had been running. Under these circumstances, we find that it was reversible error to deny the defendant’s request for a specific charge on the issue of identification (see, People v Clarke, 108 AD2d 819). As we stated in People v Clarke (supra, at 820): "The failure of the trial court in the instant case to furnish the jury with adequate guidelines is illustrated by the fact that it did not specifically instruct the jury that the People had to prove identification beyond a reasonable doubt, thus falling short of what is considered to be the minimally acceptable identification charge (see, People v Whalen, 59 NY2d 273, 279). The only reference which could possibly relate to the evaluation of identification testimony was that the jury must consider 'the opportunity that the witness had to observe the facts concerning which he or she testified’. Given the close question of identification presented at trial * * * this reference, without more, was clearly insufficient”. Accordingly, the defendant is entitled to a new trial. The other issues raised by the defendant are either without merit or need not be considered in light of our determination. Brown, J. P., Lawrence and Kooper, JJ., concur.