Court Orders a New Trial

This case involves a defendant who was convicted by the jury for attempted murder in the second degree and assault in the second degree. Finding two errors of sufficient import, the court ruled that defendant was deprived of a fair trial. Thus, a new trial was ordered.

On January 4, 1977, at approximately 10:30 p. m. the victim was returning to his home at 515 West 174th Street when he was confronted outside his fourth floor apartment by a man standing four or five feet away, pointing a black handgun at him (possession of a weapon). The gunman demanded money to the victim and when the latter raised his hands and replied that he had none, the gunman fired a shot, hitting him in the face, and then fled down the stairs. The victim recognized the gun man as the defendant as the criminal.

The wife of the victim heard shots outside her apartment, she opened the door and saw defendant standing by the stairway. Two men were running down the stairs. One was on the third floor, the other on the second. The wife described the man closer to her as tall and skinny with light brown hair in a medium Afro, and wearing a long dark coat with “something white” in the collar. At trial the victim was also to describe the man with the gun as tall with a “like blond” Afro, and wearing a long, dark coat with a white collar. The wife testified that the other man was tall, slim, with short black hair and wearing “something dark.”

Defendant testified that on the evening of January 4, 1977 between 9:30 and 10:00 p. m., he went to a neighborhood pool hall from 10:30 to 11:00 p. m. with a friend, H. Defendant was certain that he stopped playing at 11:00 p. m. since he was watching the time because H, who had to get up for work the next morning, had said earlier that he would play only until 11 o’clock. When defendant testified that he saw a man in the restaurant, whom he knew as C, the prosecutor objected that since only H was listed in defendant’s notice of alibi, reference to any other alibi witness should be prohibited. Defendant argued that any person in his company after he left the pool hall at 11 p. m. was not an alibi witness within the intendment of CPL § 250.20, since he was not with that person “at the time of the commission of the crime.” Defendant thereafter resumed his narrative without mentioning the name of anyone he had met following 11 p. m. After he left the pool hall, he had coffee with “somebody” in the restaurant for ten or fifteen minutes and then went to a “friend’s” house where he stayed for three or four hours until he returned home to his parents’ apartment sometime between 3:30 or 4:00 a. m.

The Court ruled that it was error to exclude the testimony of the two witnesses whom defendant had hoped to call in support of his testimony concerning his activities after 11 p. m. This testimony was relevant since defendant had accounted for his whereabouts at the time of the shooting by testifying to his activities at the pool hall until 11 p. m. Accordingly, these witnesses could have testified to the color and type of the outer garment defendant was wearing and perhaps supported his claim that he was not wearing the long black coat with the white fur collar earlier that evening. Defendant was denied this opportunity by the exclusion of these witnesses.

The Court held that the testimony of these two witnesses should not have been excluded for failure to list their names in the notice of alibi. Section 250.20(1) of the Criminal Procedure Law, which prescribes the procedure by which the People may ascertain whether a defendant intends to offer an alibi defense and elicit the particulars thereof, sets forth the critical time frame covered by the defense of alibi. It requires that where a defendant plans to assert that “At the time of the commission of the crime charged he was at some place or places other than the scene of the crime” (emphasis added) he must, pursuant to demand, furnish the names and addresses of the witnesses he intends to call to establish such a defense.

Moreover, the court emphasized another reason why a new trial is warranted. It said that the police office had prepared a UF-61 report, which was admitted in evidence, and which recorded a physical description of the assailant that on its face did not fit defendant. Defendant is 6′ 2 tall; his hair is light brown and worn in an Afro style. The report described the perpetrator as 5′ 9 in height, with black hair. His clothing was listed as “unknown”. The police officer testified that neither the victim nor his wife ever mentioned a second person. These entries were significant in the light of the wife’s testimony that she saw two men running down the stairs after the shooting.

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