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PEOPLE STATE NEW YORK v. RICHARD ALEXANDER POPOLO (01/20/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


January 20, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RICHARD ALEXANDER POPOLO, APPELLANT

Judgment of the Supreme Court, Queens County, rendered June 12, 1967 on resentence (the original sentence was rendered April 21, 1967), reversed, on the law, and new trial ordered. No questions of fact were considered.

Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.

In this case, the identity of the perpetrator of the crime was in issue. On the trial a police officer was twice permitted to testify, over objection, to a previous identification of defendant by the People's witness who identified defendant upon the trial. In addition, reference to such testimony by the officer was made by the prosecutor in summation and by the trial court in its charge, to which the defense took exception. Under the circumstances disclosed by this record, the admission of the prejudicial hearsay testimony as to the previous identification requires reversal (People v. Trowbridge, 305 N. Y. 471; People v. Wright, 21 N.Y.2d 1011; People v. Thompson, 16 A.D.2d 705). Although defendant's notice of appeal, filed soon after the original sentence, was premature with respect to the judgment on resentence, we have entertained the appeal under the authority of section 524-c of the Code of Criminal Procedure (cf. People v. Clayton, 28 A.D.2d 543).

19690120

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