PEOPLE v. JONES

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Julius JONES, appellant.

Decided: May 27, 2003

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, and SANDRA L. TOWNES, JJ. Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Michael Tarbutton of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered June 26, 2001, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

 During the direct examination of the arresting detective, the prosecutor elicited testimony that the detective arrested the nontestifying codefendant at 6:15 P.M., brought him back to the police station house, and interviewed him.   He and another police officer subsequently responded to a location.   When the prosecutor asked what happened there, the detective responded that he arrested the defendant.   Eight questions later, the prosecutor elicited from the detective that he arrested the defendant at 6:35 P.M. Such questioning was improper, as it was indicative of a deliberate attempt by the prosecutor to create in the jurors' minds the impression that the codefendant implicated the defendant (see People v. James, 289 A.D.2d 506, 507, 735 N.Y.S.2d 180;   People v. Cummings, 109 A.D.2d 748, 485 N.Y.S.2d 847;  People v. Tufano, 69 A.D.2d 826, 827, 415 N.Y.S.2d 42).

 In addition, the court erred in precluding cross-examination of the complainant regarding the length of time it took him to identify the defendant at a lineup.   Where, as here, the reliability of the identification by the complainant, the sole eyewitness, was crucial at trial, such restriction on cross-examination was improper (see People v. Williamson, 79 N.Y.2d 799, 800-801, 580 N.Y.S.2d 170, 588 N.E.2d 68;  People v. Ashner, 190 A.D.2d 238, 247, 597 N.Y.S.2d 975).

Under the circumstances of this case, the errors were not harmless.

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