SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 15, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ERNEST WHITE, APPELLANT
Appeal by defendant from a judgment of the County Court, Westchester County, rendered March 21, 1968, convicting him of robbery in the first degree and murder in the first degree, upon a jury verdict, and imposing sentence.
Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.
In our opinion the identification technique employed by the police was so highly prejudicial and suggestive that the testimony of the People's witness who identified defendant was thereby irreparably tainted. Viewed in the totality of the circumstances and since, in our opinion, it could not, as a matter of law, be shown that the witness' in-court identification was of independent origin, the admission thereof in evidence was reversible error (United States v. Wade, 388 U.S. 218; Stovall v. Denno, 388 U.S. 293
, 297, 301-302; Palmer v. Peyton, 359 F. 2d 199
, 201-202; People v. Brown, 20 N.Y.2d 238, 243; People v. Mobley, 29 A.D.2d 775).
Judgment reversed, on the law, and new trial ordered. The findings of fact below have not been considered.
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