People v. Machicote

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered August 5, 1996, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Flug, J.), 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. The hearing court properly denied the defendant’s motion to suppress identification testimony since the showup identification was not the product of a police-arranged procedure (see, People v Samuels, 162 AD2d 559). However, the defendant’s conviction must be reversed because of certain trial errors. The court erred in charging the jury that the defendant’s wife was an interested witness as a matter of law (see, People v Olivero, 247 AD2d 557; People v Jackson, 80 AD2d 904). Further, the prosecutor improperly posed certain questions to the defendant’s wife and elicited testimony which made it clear that the defendant was incarcerated. The jury’s awareness of his incarceration undermined the presumption of innocence, depriving him of a fair trial (see, People v Connor, 137 AD2d 546). These errors cannot be deemed harmless (see, People v Crimmins, 36 NY2d 230). In light of our determination, it is unnecessary to address the defendant’s remaining contention. Mangano, P. J., Bracken, Altman and McGinity, JJ., concur.