Opinion
May 31, 1977
Appeal by defendant from a judgment of the County Court, Orange County, rendered March 26, 1976, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the facts, and indictment dismissed. There was only contradictory and ambiguous evidence as to how the defendant-appellant's identity was established. Each of two police officers testified that the other had provided the defendant's name. Although a police informer was in the apartment at the time of the alleged sale, neither the informer, nor any of the other eight persons in the apartment, testified or provided any identification of the defendant. The in-court identification is of little probative value since the defendant was seated at the defense table and was the only Black male in the courtroom. "While the general rule is that, when a victim or `a witness positively identifies a defendant as the man who committed a crime, the weight of the evidence of identification is for the jury unless it is incredible as a matter of law' (People v Seppi, 221 N.Y. 62, 68), it is our opinion that the evidence of identification was insufficient to support a finding that the evidence proved defendant to be guilty beyond a reasonable doubt" (People v Noland, 27 A.D.2d 663). Cohalan, J.P., Damiani, Rabin and Titone, JJ., concur.