People v. Morris , 473 N.Y.S.2d 550 ( 1984 )

Appeal by defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered November 14, 1980, convicting him of murder in the second degree (felony murder), and robbery in the first degree, upon a jury verdict, and imposing sentence. U Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. f The charges against defendant stem from the robbery of Ernest Rice in the hallway of his apartment building on May 4, 1979 and his subsequent death from injuries received at that time. The only evidence which implicated defendant in the crimes was the identification testimony of Rice’s neighbor. Her initial inability to remember that defendant, whom she had known for one to three years, was one of the persons she had observed robbing Rice, coupled with her concession that defendant appeared older than any of Rice’s assailants, created a very close identification question. This was especially true not only because two defense witnesses testified that the assailants were younger than defendant and defendant was not one of them, but also because at a prior trial resulting in a hung jury Rice’s neighbor had testified that upon running down the stairs to Rice’s aid, she “went by him and * * * went out the [apartment building] door to see who it was. But by the time [she] got outside the door they were gone” (emphasis supplied). H Although a one-witness identification is sufficient to support a judgment of conviction (see People v Joyiens, 39 NY2d 197), in this close case, errors committed by the trial court may have tipped the balance against defendant and operated to deprive him of a fair trial. Ü The trial court erred in permitting the prosecutor to question the defense witnesses regarding their failure to come forward with exculpatory information without laying a proper foundation for that questioning. Contrary to the requirements set forth in People v Dawson (50 NY2d 311, 321, n 4), the People failed to establish that these witnesses had a reasonable motive for acting to exonerate defendant, that they were aware of the nature of the charges pending against him, that they had reason to recognize that they possessed exculpatory information, and finally that they were familiar with the means to make such information available to law enforcement authorities. Accordingly, this line of questioning was improper, and no reference to it in the summation should have been made. The trial court should also have instructed the jury that a witness has no civil or moral duty to disclose his testimony to the People and that silence was only relevant with respect to ascertaining the witness’ credibility (People v Dawson, supra, pp 322-323). 1 Moreover, in its charge to the jury, the court failed to marshal the evidence on the question of identification. In this close case, it was essential that the jury be advised on how to evaluate the identifying witness’ initial inability to identify defendant and how to weigh her identification testimony in light of the testimony of the defense witnesses who also saw the assailants and testified that defendant was not among them (see People v Rothaar, 75 AD2d 652; People v Gardner, 59 AD2d 913). H Finally, after charging the jury that the People had to prove every element of each crime charged beyond a reasonable doubt, the court went on to state that “there is no obligation on the part of the prosecutor to establish the elements of the crime * * * beyond all doubt or to a mathematical certainty because you cannot get such a degree of proof in human affairs * * * but you can get proof to a reasonable certainty and to that degree of proof the People must be held” (emphasis supplied). Despite the propriety of the initial language of the charge, the use of “reasonable certainty” may have reduced in the jury’s mind the quantum of proof constitutionally required to sustain a guilty verdict and affected their deliberations. In this close case, such an error may not be deemed harmless (see People v Cavallerio, 71 AD2d 338, 345; People v Tyler, 54 AD2d 723). H Although these errors have not been preserved for review, under the circumstances of this case we believe that their cumulative effect was to deprive the defendant of a fair trial and mandates reversal and a new trial in the interest of justice (see People v Walston, 99 AD2d 847). We have examined defendant’s other contentions and find them to be without merit. O’Connor, J. P., Niehoff and Boyers, JJ., concur.