People v. Cobb

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Dubin, J.), rendered October 23, 1980, convicting him of attempted murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. The findings of fact are affirmed.

The cumulative prejudicial effect of several prosecutorial improprieties deprived the defendant of a fair trial. In his opening statement to the jury, the prosecutor stated that “Counihan [the police detective who helped effectuate defendant’s arrest] will tell you * * * the complainant says, ‘That’s the man who did it. That’s the man’ ”. During trial, Detective Counihan described how the defendant was arrested and was brought to the police car, whereupon the complainant, who was sitting in the police car, said “something to the effect [of], ‘Why did you shoot me?’ ” The prosecutor’s opening comments and the detective’s testimony with respect to the complainant’s remarks violated the rule against improper bolstering of a complainant’s identification testimony (see People v Trowbridge, 305 NY 471; People v Hall, 82 AD2d 838). These errors were compounded by certain indiscretions by the prosecutor upon his cross-examination of the defendant. The prosecutor was exploring the reasons why defendant fled when he saw the complainant point at him from the back of an approaching automobile in which the complainant was seated. After the defendant testified that he did not hear the complainant say anything, the prosecutor inquired incredulously:

“Q You didn’t hear him say, ‘That’s the guy who tried to kill me?’

“A I didn’t hear him say that.

“Q You didn’t hear him say that that’s the guy who shot me in the head with a gun?”

These questions were improper for two reasons: (1) they had the indirect effect of bolstering the complainant’s testimony identifying the defendant as his assailant; and (2) the complainant himself never testified that he made those statements.

Moreover, on summation the prosecutor commented upon the trial testimony to the effect that defendant was the only person who ran when the complainant pointed in the direction of a group of boys among whom defendant was standing. The prosecutor unfairly misstated the evidence presented at trial by asserting that the six or seven boys other than defendant did not run because “they didn’t know what this was about. They stood there and said, ‘Who the hell is this guy pointing at us?’ ” These remarks were improper because there was no testimony that any more than two or three of the boys were facing the complainant when he pointed in the direction of the group. In addition, the prosecutor propounded facts not in evidence when he suggested that the interior lights of the taxi which the complainant was driving when he was robbed went on when the defendant opened the rear door of the cab. The complainant had actually testified that the light went on some moments later, when the defendant’s accomplice opened the driver’s door of the cab, just before defendant’s accomplice pulled the complainant out of the cab. Since the defendant had sought to establish that the complainant did not have sufficient time or illumination to see the robber’s face, the prosecutor’s comments that the interior light may have been triggered by the opening of the rear door were prejudicial. Although the issue was not preserved for review, we reach it in the interest of prejudice.

We further find that certain remarks by the prosecutor, upon summation, which focused upon the defendant’s record of irregular attendance at school, and implied that the poor attendance record was some indication that defendant might be a killer, exceeded the bounds of permissible rhetoric (see People v Ashwal, 39 NY2d 105, 109-110). In these comments, the prosecutor declared, “I submit to you, she [defendant’s mother] has two sons — the son who eats supper in the house, and the son that was thrown out of John Adams High School. The son who goes nine days out of three or four months to school, and the son who puts a gun to a taxi driver’s head and blows his brains off”.

It was also improper for the prosecutor to fail to produce a mug shot taken of defendant at the time of his arrest. Defense counsel specifically requested this photograph during trial after Detective Counihan had testified that defendant did not have a moustache at the time of his arrest. The mug shot showed defendant as having had a conspicuous moustache on the date of his arrest. If the photograph had been produced, it might have been useful in discrediting the detective’s testimony. The photograph was also relevant to the issue of defendant’s identity as the perpetrator, since the complainant, in his initial description to the police of his assailant, made no mention of any moustache, and defendant sought at trial to establish that he had a thick moustache at the time the crime was committed (Feb. 25,1980), similar to the one he wore at the time of his arrest (April 27, 1980). There is no indication in the record that the prosecutor made a diligent, good-faith effort to produce the photograph once the moustache had become an issue (see CPL 240.20, subd 1, par [d]; subd 2).

Finally, it was also improper for the prosecutor to introduce a photograph of defendant for the purpose of contradicting the testimony of a defense witness, the defendant’s mother, on the collateral matter of whether defendant ever wore bandanas or scarves on his head (see People v Schwartzman, 24 NY2d 241, 245, cert den 396 US 846).

The cumulative effect of these errors cannot be said to be harmless in this case where the identity of defendant as the perpetrator of the crime was hotly contested, and where the identification of the defendant rested solely upon the testimony of the complainant, and defendant took the stand and denied his participation in the robbery and the shooting. Accordingly, a new trial is required (see People v Hall, 82 AD2d 838, supra). We have considered defendant’s other contentions and find them to be without merit. Bracken, J. P., Brown and Niehoff, JJ., concur.