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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ELIECER LEE, Appellant.

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant has not preserved for appellate review his contentions that the prosecutor improperly elicited testimony from a detective stating that he arrested the defendant immediately after the defendant was identified in a lineup by the complainant, and improperly asked the complainant whether he recognized the defendant in a lineup. However, we nevertheless review these contentions in the exercise of our interest of justice jurisdiction ( see CPL 470.15 [a]; see also People v. Pagan, 2 AD3d 879, 880).

The detective's testimony implicitly bolstered the complainant's testimony by providing official confirmation of the complainant's identification of the defendant ( see People v. Trowbridge, 305 NY 471; People v. Fields, 309 AD2d 945 and cases cited therein). A violation of the rule against bolstering may not be overlooked except where the evidence of identity is so strong that there is no serious issue upon that point ( see People v. Fields, supra). Here, the evidence that the defendant committed the crime was not so overwhelming as to render the error harmless.

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PEOPLE v. LEE
(Oct 11, 2005)