People v. Burris , 19 A.D.2d 557 ( 1963 )

Appeal by defendant from a judgment of the former County Court, Kings County, rendered June 26, 1961 after a jury trial, convicting him of robbery and grand larceny, both in the first degree, and assault in the second degree, and imposing sentence. Judgment reversed on the law and on the facts and a new trial ordered. In our opinion, the defendant did not receive a fair trial. Both the court and the Assistant District Attorney suggested to the jury that the identification of the defendant by the complaining witness should be weighed in the light of the fact that both the defendant and the witness were Negroes. We have firmly rejected the weighing of testimony on the basis of racial similarity or dissimilarity of witnesses (People v. Hearns, 18 A D 2d 922). As identification here turned on the testimony of a single witness, a new trial is necessary to correct the possible effect on the jury of an argument which should be eschewed as false in its premise and divisive in its result. Beldock, P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.