People State New York v. Francis X. Mccann

Appeal by defendant from a judgment of the Supreme Court, Queens County (Tsoucalas, J.), rendered May 15, 1981, convicting him of sodomy in the first degree, sexual abuse in the first degree (two counts), unlawful imprisonment in the first degree and endangering the welfare of a child, 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. On September 13, 1976 the then 14-year-old complainant was returning home from school when she was accosted in the elevator of her apartment building by a man who took her at gunpoint to an incinerator room and committed sodomy. More than three years later the victim identified a photograph of the defendant -- a Federal law enforcement officer -- and then picked him out of a lineup as her assailant. At the trial, the complainant was the only identification witness. The defendant vigorously protested his innocence and sought to establish that the victims description of her attacker substantially differed from his own appearance at the time the offense was committed. The victim had initially described her assailant to the police as being approximately 30 years old, 5 feet 9 inches, 180 pounds, light complexioned, with short dirty blond hair and reddish blond facial hair that was more pronounced around his chin. He used a short silver handgun and wore a yellow metal watch. The defendant introduced photographs of himself taken six days after the commission of the crime in which he had a light reddish goatee type beard and medium length reddish brown hair. He stood 5 feet 6 and 1/2 inches and weighed approximately 180 pounds in September, 1976. Additional testimony was introduced with respect to the defendants complexion, the color of his personal and government issued weapons, watch color and clothing style all of which varied from the victims description. The defendant also introduced his official diary showing that he was in his office at the time the crime occurred. After two days of deliberations, the jury resolved the issue of identification against the defendant. After review of the record and in spite of the inconsistencies in the trial testimony and exhibits with respect to the issue of identification, we are unable to conclude that the evidence was insufficient as a matter of law to sustain the jurys determination of the defendants guilt (cf. People v Joyiens, 39 N.Y.2d 197; People v Castillo, 62 A.D.2d 938; People v Wynn, 57 A.D.2d 937). Nevertheless, it is our judgment that a new trial is required. It has been often repeated that "[the] vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification" (United States v Wade, 388 U.S. 218, 228; see, generally, OConnor, "Thats the Man": A Sobering Study of Eyewitness Identification and the Polygraph, 49 St. Johns L Rev 1; Sobel, Eye-witness Identification, § 1.1). There can be no greater miscarriage of justice than the conviction of an innocent person as a result of mistaken identification (see, e.g., People v Kidd, 76 A.D.2d 665; United States v Greer, 538 F2d 437, 441). Mistaken identification "probably accounts for more miscarriages of justice than any other single [90 A.D.2d 554 Page 555]