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Assault case sent back to lower court

Defense should have been informed of identification

A state appeals court has sent an assault case back to the lower court because of a question about the identification of the defendant.

David S. Alcaraz-Ubiles, 31, was convicted, in state Supreme Court in Monroe County before Justice Alex R. Renzi in August 2016 of first-degree assault.

He was sentenced to a minimum of 25 years, eight months and 16 days and a maximum of 30 years in state prison.

Alcaraz-Ubiles appealed and, in a decision released Friday, the Appellate Division of state Supreme Court, Fourth Department, reserved decision and sent the matter back to Supreme Court.

The panel ruled that the verdict was not against the weight of the evidence.

Alcaraz-Ubiles’ appellate lawyer, David M. Abbatoy Jr., argued that Renzi should not have relied on evidence at trial to decide that the pretrial identification of the defendant in a photograph by a prosecution witness was confirmatory, thus obviating the requirement that the People provide notice of the identification to defendant.

The Fourth Department agreed and remitted the case back to Supreme Court “for a hearing to determine whether the witness knew defendant so well that no amount of police suggestiveness could have tainted the identification.”

“The witness in question disclosed on cross-examination at trial that he had identified defendant as the assailant in a photograph shown to him by the police,” according to the decision.

“The prosecutor did not reference this identification. Defense counsel thus asked the court to strike the witness’s testimony on the ground of lack of notice, but the court, relying on the witness’s trial testimony, ruled that the People were not required to give notice because the identification was confirmatory,” the court wrote.

The Fourth Department ruled that that was an error.

“As the Court of Appeals has made clear, prior familiarity should not be resolved at trial in the first instance,” the court wrote.

The witness’s trial testimony was not adequate to establish as a matter of law that the identification was confirmatory, the Fourth Department found.

The witness testified that he knew the defendant because he had seen him “a couple of times” at a barber shop, and that they had each other’s phone numbers.

“He also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault,” according to the decision.

A midtrial hearing “would have allowed defense counsel to flesh out the extent of the relationship between the two men, thereby allowing the court to make a more informed determination as to whether the pretrial identification of defendant was confirmatory as a matter of law,” the Fourth Department wrote.

The panel wrote that the error was not harmless because, “it cannot be said that there is no reasonable possibility that the error might have contributed to defendant’s conviction.”

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