author: Graffeo, J.

text:
    [814 NE2d 1189, 781 NYS2d 630]
    American Transit Insurance Company, Appellant, v Anthony Sartor, Respondent, et al., Defendants.
    Argued June 2, 2004;
    decided July 1, 2004

      POINTS OF COUNSEL

      Berger & Webb, LLP, New York City (Charles S. Webb, III, and Thomas E. Hone of counsel), and Marjorie E. Bornes for appellant.
    I. American Transit Insurance Company properly disclaimed coverage for liability under its policy, issued under Vehicle and Traffic Law § 370, since there was no notice to the insurer that a suit was commenced against the insured until after a default judgment was entered. (Fusco v American Colonial Ins. Co., 221 AD2d 231; Matter of Travelers Indem. Co. [Madera], 189 AD2d 570; Red Apple Cos. v Scottsdale Ins. Co., 269 AD2d 208; Matter of DeLeon v Motor Veh. Acc. Indem. Corp., 243 AD2d 475; Jenkins v Burgos, 99 AD2d 217; Spadaro v Newark Ins. Co., 21 AD2d 226; Jewtraw v Hartford Acc. & Indem. Co., 280 App Div 150; Gluck v London & Lancashire Indem. Co., 207 Misc 471; Tennant v Farm Bur. Mut. Auto. Ins. Co., 286 App Div 117; Rodriguez v Liberty Mut. Ins. Co., 214 AD2d 366.) II. American Transit Insurance Company’s disclaimer against Utica Taxi Center, Inc. was proper, but, even if Utica were an insured under the policy, Anthony Sartor could not recover against American since the disclaimer against Sartor was proper.

      Herman & Herman, PC, New York City (Glenn A. Herman of counsel), for respondent.
    I. Vehicle and Traffic Law § 370 prohibits American Transit Insurance Company from denying financial responsibility to Anthony Sartor, a member of the general public injured by the negligence of its insured. (ELRAC,

      Inc. v Ward, 96 NY2d 58; Devlin v New York Mut. Cas. Taxicab Ins. Co., 123 Misc 784, 213 App Div 152; Engelson v Commerce Cas. Co., 149 Misc 886; Pape v Red Cab Mut. Cas. Co., 128 Misc 456; Sandolovich v United States Fid. & Guar. Co., 142 Misc 463; Harris v Equitable Sur. Co., 131 Misc 85; Green Bus Lines v Ocean Acc. & Guar. Corp., 287 NY 309; Fidelity & Cas. Co. of N.Y. v Russell, 31 AD2d 4, 26 NY2d 678; Frenkel v Kress Taxi, 208 Misc 374; Mironov v New York Mut. Underwriters, 147 AD2d 761.) II. In addition to Vehicle and Traffic Law § 370, the express language of American Transit Insurance Company’s policy prevents it from disclaiming coverage. III. The disclaimer law and protections available under a private passenger vehicle insurance policy are separate and distinct from the protections available to for-hire vehicles. (Pape v Red Cab Mut. Cas. Co., 128 Misc 456; Mironov v New York Mut. Underwriters, 147 AD2d 761, 74 NY2d 615; Swee v Vais Trans, 225 AD2d 113; Matter of Mackey [Allcity Ins. Co.], 27 AD2d 728; Engelson v Commerce Cas. Co., 149 Misc 886; Frenkel v Kress Taxi, 208 Misc 374.) IV Utica Taxi Center, Inc. is an insured of American Transit Insurance Company under its policy. (Sosnowski v Kolovas, 127 AD2d 756.) V By issuing the subject policy of insurance, American Transit Insurance Company certified to the Commissioner of Motor Vehicles that it undertook to protect the public pursuant to law but then brought the within action to evade its statutory obligations. (Devlin v New York Mut. Cas. Taxicab Ins. Co., 123 Misc 784; Jenkins v Burgos, 99 AD2d 217.) VI. American Transit Insurance Company’s arguments are misplaced and not supported by the authorities cited. (Devlin v New York Mut. Cas. Taxicab Ins. Co., 213 App Div 152; Sandolovich v United States Fid. & Guar. Co., 142 Misc 463; Jenkins v Burgos, 99 AD2d 217; Pierre v Providence Washington Ins. Co., 99 NY2d 222.)
   OPINION OF THE COURT

Graffeo, J.

The issue in this case is whether Vehicle and Traffic Law § 370 obligates the insurer of a taxicab to satisfy a default judgment entered against its insureds where the insurer was never notified, as required by the terms of its commercial liability policy, that legal proceedings had been commenced by the injured party. We conclude that the statute does not obviate the insurer’s right to such notice and, therefore, the insurer is entitled to disclaim coverage under these circumstances.

Defendant Anthony Sartor was injured in March 2000 when a vehicle he was driving was involved in an accident with a taxicab being driven by defendant Julien Mesamours. The taxicab, which was owned by defendant Utica Taxi Center, Inc., was insured by plaintiff American Transit Insurance Company in the name of the registered owner, defendant Pierre Toussaint. Although a taxi operator is required to provide written notice to its insurer within five days of an accident or face a misdemeanor criminal charge (see Vehicle and Traffic Law § 370 [4]), neither Mesamours, Toussaint nor Utica Taxi informed American Transit about the collision involving Sartor. Approximately seven months later, Sartor’s attorney notified American Transit of the accident, and requested information regarding the name of American Transit’s claim adjuster and the extent of the policy’s liability limits. American Transit apparently never responded to this inquiry.

Sartor, an Ohio resident, subsequently initiated a personal injury action against Mesamours, Toussaint and Utica Taxi in Federal District Court. None of the defendants answered Sartor’s complaint or informed American Transit that a lawsuit had been filed, as required by the terms of the policy. Nor did Sartor, whose attorney had contacted American Transit three months earlier, send the insurer notice that he had filed a lawsuit. After obtaining a default judgment and submitting proof of his injuries at an inquest, Sartor was awarded $100,000 in damages against the three defendants. Sartor served a copy of the judgment on American Transit and the defendants one week later. American Transit disclaimed coverage solely on the basis that it had not been timely notified by any party of the commencement of the litigation or the application for a default judgment, and it asserted that Utica Taxi was not its insured as defined by the policy.

American Transit then commenced this action, seeking a declaration that it was not obligated to satisfy Sartor’s default judgment. The insurer moved for summary judgment and Sartor cross-moved for summary judgment declaring that the disclaimer was improper. Supreme Court granted American Transit’s motion, concluding that the lack of notice to the insurer of the initiation of the federal lawsuit constituted a breach of an express condition precedent to coverage under the terms of the commercial insurance policy and Sartor’s notice of the accident was insufficient.

The Appellate Division reversed and granted Sartor’s cross motion for summary judgment. Despite the undisputed fact that American Transit was never informed about the initiation of litigation, the Court determined that American Transit was liable for the default judgment because the terms of the policy and relevant provisions of the Vehicle and Traffic Law provide that an insured’s failure to supply requisite notice does not prejudice the rights of an injured party to recover under the policy. We granted leave to appeal and now reverse.

Our analysis of the issue presented in this case is guided by well-settled principles of insurance law. Among these is the rule that an insurer has the right to demand that it be notified of any loss or accident that is covered under the terms of the insurance policy (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]; Hicks v British Am. Assur. Co., 162 NY 284, 292 [1900]). The purpose of such a requirement is to “afford the insurer an opportunity to protect itself’ (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 440) by, for example, “investigating claims soon after the underlying events” (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496 [2002]). Here, the commercial liability policy, having been approved by the Superintendent of Insurance for use in compliance with section 370 of the Vehicle and Traffic Law, expressly conditions American Transit’s obligation to provide coverage upon its receipt of “immediate written notice of any accident causing loss.”

Distinct from notice of an accident, an insurer may also demand that it receive timely notice of a claimant’s commencement of litigation. The purpose of such notice is to provide the insurer with a fair and reasonable opportunity to appear and defend against a claim or exercise its right to settle the matter. The policy issued by American Transit conditions its coverage obligation upon receipt of “immediate written notice of any . . . notice of claims for damages on account of such accidents.” The policy further states that “[i]f any suit is brought against the Insured to recover such damages the Insured shall immediately forward to the Company every summons or other process served upon him.”

The insurer’s receipt of such notice is therefore a condition precedent to its liability under the policy (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 440). The failure to satisfy this requirement may allow an insurer to disclaim its duty to provide coverage (see id.; see also Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d at 496-497; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992]). Significantly, although it is the insured that is charged with the primary duty to issue notice to the insurer, the Legislature has given an injured party the statutory right to fulfill this policy obligation by allowing any necessary notification to be issued by the claimant (see Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 568 [1st Dept 1957], affd 4 NY2d 1028 [1958]; see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 863-864 [1979]). Section 3420 (a) (3) of the Insurance Law mandates that all liability policies include a provision that “written notice by or on behalf of the injured person or any other claimant. . . shall be deemed notice to the insurer.”

In this case, Sartor argues that the general notice rules have been modified by section 370 (4) of the Vehicle and Traffic Law, which specifically addresses taxicabs and other vehicles that transport passengers for hire. He claims that the insureds’ failure to comply with the notice requirements cannot prejudice his rights as an injured party and, therefore, American Transit cannot disclaim coverage by relying on his failure to provide notice of the federal litigation. We disagree with this contention.

The starting point in any case of statutory interpretation must, of course, always be the language itself, giving effect to its plain meaning. A court cannot amend a statute by adding words that are not there (see Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995]). Applying these established principles of statutory interpretation, we find nothing in the text of Vehicle and Traffic Law § 370 (4) to indicate that the Legislature intended to alter the long-standing insurance industry practice with regard to notice or the right that Insurance Law § 3420 (a) (3) grants to injured claimants. With respect to vehicles that transport passengers for hire, section 370 (4) of the Vehicle and Traffic Law provides that:

“[e]very person operating a motor vehicle . . . as to which a bond or policy of insurance is required by this section, which is in any manner involved in an accident, shall within five days give written notice of the time and place of the accident to the surety or insurer. Failure to give notice of an accident as herein provided shall constitute a misdemeanor, but shall not affect the liability of the surety or insurer.”

It is readily apparent that the purpose of this provision is to establish an incentive to the operator of a vehicle for hire to supply its insurer with immediate notice that an accident has occurred in order to avoid criminal liability for noncompliance. But the statute also clearly indicates that the operator’s failure to furnish such notice has no effect on the insurer’s obligations under the terms of the insurance policy. Thus, a violation of section 370 (4) does not create an exclusive basis for a disclaimer of coverage by the insurer. Nothing in the language of the statute therefore relieves a claimant from complying with Insurance Law § 3420 (a) (3)—the provision allowing an injured party to issue the notice otherwise required of an insured—in order to preserve a right to recovery.

Nor does subdivision (1) of section 370 undermine American Transit’s right to receive notice of litigation. This portion of the statute states, in relevant part, that “[e]very person, firm, association or corporation engaged in the business of carrying or transporting passengers for hire in any motor vehicle . . . shall file with the commissioner of motor vehicles ... a policy of insurance . . . conditioned for the payment of a minimum sum ... on a judgment or judgments for damages” (Vehicle and Traffic Law § 370 [1]). The policy issued by American Transit complies with this statutory command. Although Sartor asserts that requiring notice of commencement of a lawsuit transforms the policy into a noncompliant, illusory agreement to pay a damages judgment, we find this contention unpersuasive, given that it is permissible for an insurer to seek compliance with various notice and cooperation provisions as conditions precedent to its coverage obligations.

In addition, requiring a claimant to give proper and timely notice of the initiation of litigation does not contravene the general “ ‘public policy that victims of automobile accidents should have recourse to a financially responsible defendant’ ” (Planet Ins. Co. v Bright Bay Classic Vehs., 75 NY2d 394, 401 [1990], quoting Motor Veh. Acc. Indent. Corp. v Continental Natl. Am. Group Co., 35 NY2d 260, 265 [1974]). Nor does it subvert the public policy underlying Vehicle and Traffic Law § 370 and its predecessor statutes, which were enacted “from the viewpoint of the protection of the passengers using the common carrier and not primarily for the protection of the owner” of the vehicle for hire (Green Bus Lines v Ocean Acc. & Guar. Corp., 287 NY 309, 313 [1942]). Permitting an insurer to demand notice of litigation neither undermines the insurer’s financial responsibility nor shifts the protections of common carrier policies away from the injured party. To the contrary, a claimant, acting in a responsible manner by providing notice to the insurer under Insurance Law § 3420 (a) (3), can singlehandedly protect his or her recovery in the event a judgment eventually is entered against an insured.

Our decision that Vehicle and Traffic Law § 370 does not negate the notice condition precedent required by the policy at issue in this case effectuates the intent of the Legislature, as reflected in the language of the statute and Insurance Law § 3420, and also preserves the fair and reasonable balance of rights and responsibilities among injured claimants, insured parties and their insurers. Rather than being left to the mercy of an insured’s acts of compliance or noncompliance with the terms of the insurance policy, a claimant injured by a vehicle for hire can safeguard the ability to seek enforcement of a judgment against the insurer by exercising the independent notice right provided by the Legislature in Insurance Law § 3420 (a) (3). Concomitantly, the insurer will have an opportunity to challenge or settle claims against its insured. We therefore conclude that American Transit properly disclaimed coverage of the default judgment on the ground that it did not receive notice of the federal litigation.

Finally, in light of our determination, it is unnecessary to address Sartor’s remaining argument regarding the effect of the Utica Taxi disclaimer.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

Chief Judge Kaye and Judges G.B. Smith, Cipaeick, Rosenblatt, Read and R.S. Smith concur.

Order reversed, etc.

      . Concurrently with the initiation of this action, American Transit (on behalf of Toussaint and Mesamours) applied in federal court to vacate the default judgment on the ground that process was not properly served by Sartor. After a traverse hearing, the District Court denied the motion, but the Court of Appeals for the Second Circuit vacated that decision and remanded to provide the District Court an opportunity to consider whether Sartor’s process server exercised due diligence prior to using affix-and-mail service on Mesamours and whether Toussaint was properly served at Utica Taxi’s place of business (see Sartor v Toussaint, 70 Fed Appx 11, 14 [2d Cir 2002]). On remand, the District Court adhered to its original decision and refused to vacate the default judgment (see Sartor v Utica Taxi Ctr., Inc., 260 F Supp 2d 670, 672 [SD NY 2003]).

      . Sartor’s reliance on certain language in the insurance policy issued by American Transit is unavailing for a similar reason. The policy provides that the insured’s failure to comply with the notice conditions “SHALL NOT PREJUDICE THE RIGHT OF ANY PERSON OTHER THAN THE INSURED TO RECOVER HEREUNDER.” Thus, the insured’s dilatory conduct, standing alone, does not constitute an adequate basis for a disclaimer against the injured party precisely because the claimant personally may issue the required notice pursuant to section 3420 of the Insurance Law (see General Acc. Ins. Group v Cirucci, 46 NY2d at 863-864). It is only in the event of noncompliance by both the insured and the injured claimant that the insurer may validly disclaim against the injured party

      . Paragraph 1 of the policy provides that American Transit “agrees to pay any sums which the insured may become obligated to pay by reason of the liability imposed by law upon the Insured for damages . . . resulting from the ownership, operation, maintenance, use or defective construction of the motor vehicle[ ] described in the Declaration.” This agreement, of course, is premised on American Transit being notified about the occurrence of an accident and the commencement of any litigation, as well as other conditions.

      . Sartor’s reliance on our decision in Pierre v Providence Washington Ins. Co. (99 NY2d 222 [2002]) is misplaced. The issue in that case was whether the driver of a tractor-trailer or the company for whom he worked qualified as an “insured” under a federally-mandated endorsement known as the MCS-90. And, unlike the facts of this case, the parties in Pierre “agree[d] that the endorsement modifie[d] the terms of the [insurance] policy by excusing any conditions or limitations, including the notice of accident condition on which Providence disclaimed” (id. at 230).

      . The requirement that taxicab owners file proof of insurance or other security derives from section 282-b of the former Highway Law (L 1922, ch 612), which was recodified as section 17 of the Vehicle and Traffic Law (L 1929, ch 54) before being placed into its current location in article 8 of the Vehicle and Traffic Law (L 1959, ch 775).


source: Caselaw Access Project

author: Ciparick, J. Rosenblatt, J. (concurring). G.B. Smith, J. (dissenting).

license: Public Domain

text:
    [816 NE2d 1257, 783 NYS2d 321]
    The People of the State of New York, Respondent, v Michael Calabria, Appellant.
    Argued May 6, 2004;
    decided June 8, 2004

      POINTS OF COUNSEL

      Lynn W.L. Fahey, New York City, for appellant.
    The People failed, as a matter of law, to establish appellant’s guilt beyond a reasonable doubt, because the sole eyewitness’s identification of him, based on a “quick glance” or “glimpse” of an armed assailant of whom she could give only a vague description inconsistent with appellant, was patently unreliable. (People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173; People v Ledwon, 153 NY 10; People v Foster, 64 NY2d 1144; People v Stewart, 40 NY2d 692; People v Logue, 35 NY2d 658; People v Sickles, 35 NY2d 792; People v Abelson, 309 NY 643; People v Acerra, 282 NY 628; People v Jackson, 65 NY2d 265.)

      Charles J. Hynes, District Attorney, Brooklyn (Camille O’Hara Gillespie and Leonard Joblove of counsel), for respondent.
    Defendant’s claim that the evidence was legally insufficient to establish his identity as the person who robbed the victim and burglarized the International Baptist Church is partly unpreserved for appellate review as a matter of law. In any event, the evidence was legally sufficient to establish defendant’s guilt beyond a reasonable doubt. (People v Arroyo, 54 NY2d 567, 456 US 979; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Ledwon, 153 NY 10; People v Malizia, 62 NY2d 755, 469 US 932; People v Gruttola, 43 NY2d 116; People v Concepcion, 38 NY2d 211; People v Finger, 95 NY2d 894; People v Gray, 86 NY2d 10; People v Bynum, 70 NY2d 858.)
   OPINION OF THE COURT

Ciparick, J.

After a jury trial, defendant was convicted of one count of robbery in the first degree and one count of burglary in the second degree. The key issue at trial was the identification of defendant as the perpetrator. There was one eyewitness, the victim, who positively identified defendant both at a lineup and in court. Defendant challenges the sufficiency of the evidence to support his conviction based upon the eyewitness identification.

“The standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v Contes, 60 NY2d 620, 621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979]). We have previously recognized, that the testimony of one witness can be enough to support a conviction, noting that it is typically the province of the jury to determine a witness’s credibility (see People v Arroyo, 54 NY2d 567, 578 [1982]).

Indeed, although a conviction may not stand merely because “some evidence” exists “to sustain the charge,” whether guilt has been established beyond a reasonable doubt is a jury issue “in most cases, where there is a conflict as to the facts, or the proof is open to opposing inferences” (People v Ledwon, 153 NY 10, 17, 18 [1897]). Nevertheless, this Court may in rare instances reverse a conviction on the ground that the evidence failed as a matter of law to establish guilt based on an eyewitness identification beyond a reasonable doubt, but only when “hopeless contradictions” by the sole prosecution witness make his or her testimony incredible or unreliable as a matter of law (People v Foster, 64 NY2d 1144, 1147 [1985] [citation omitted]). That in no way happened here.

Incredibility as a matter of law may result “[w]hen all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence,” because in that event “the jury is left without basis, other than impermissible speculation, for its determination of either” (People v Jackson, 65 NY2d 265, 272 [1985] [citation omitted]; see also People v Fratello, 92 NY2d 565, 573 [1998]). Thus in Ledwon, we determined that the evidence was legally insufficient to establish that the defendants had committed murder when the 12-year-old eyewitness testified, in turn, that he had witnessed the deceased commit suicide; that he had witnessed the defendants kill the deceased; and that he had witnessed the deceased commit suicide after all. In those circumstances, there was simply no way—based on the evidence, as opposed to on rampant speculation—that the jury could rationally determine beyond a reasonable doubt that one of the contradictory accounts was true and the other, false.

Here, by contrast, the victim never wavered in her testimony. She identified defendant on two occasions as the man who robbed her and was certain about the identification, stating that she “got a good look” and “absolutely” saw the perpetrator long enough to remember what he looked like. The jury reasonably concluded that the victim’s testimony was both credible and reliable. In addition, there was evidence adduced that, when brought to the precinct to await the lineup, defendant asked, “Did she really pick me out?” Although defendant claimed that he had heard the police mention that the complainant was a woman, the police denied that they had ever told this to defendant or mentioned it in his presence. Viewing the evidence in the light most favorable to the prosecution, as we must, it was rational for the jury to determine beyond a reasonable doubt that defendant committed the crimes charged.

Although the dissent purports to determine, as a matter of law, that the evidence was legally insufficient to support the verdict—an inquiry well within our province—it is apparent that the concerns of our dissenting colleagues in fact reflect their belief that the jury got it wrong. But we are a court of law, with no power of factual review. Although the Appellate Division is empowered to reverse a conviction because, in its view, the verdict is against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495-496 [1987]), we are not (see People v Leonti, 18 NY2d 384, 390 [1966]; People v Eisenberg, 22 NY2d 99, 101 [1968]; Karger, Powers of the New York Court of Appeals § 135, at 773 [3d ed]). Here, the eyewitness, a religious school teacher, testified under oath—without contradiction—that she was able to see the perpetrator’s face, albeit briefly, and that she was certain that defendant was the man who had robbed her at gunpoint. Although the dissent doubts her credibility, 12 jurors did not. Since the jury’s determination was rational, its verdict may not be disturbed.

We note that, although defendant sought to raise the issue on appeal, he did not attempt at trial to introduce expert testimony regarding certain psychological theories affecting the reliability of eyewitness identification. Had defendant offered such proof, the trial court in its discretion could have determined whether it would have been helpful to the jury in assessing the reliability of the victim’s identification testimony (see People v Lee, 96 NY2d 157, 162 [2001]).

Accordingly, the order of the Appellate Division should be affirmed.

Rosenblatt, J. (concurring).

This is a troublesome case in which the proof of guilt is thin and the evidence somewhat contradictory. But I cannot agree that the conviction must be reversed. For the Court to reverse we would have to create a new rule by which a very brief encounter—resulting in an unwavering eyewitness identification—is declared insufficient as a matter of law. That would not be a good idea. Most of us know of the weaknesses in one-on-one confrontations. Some are trustworthy, others not. It comes down to a jury question, and perhaps the Appellate Division’s interest of justice powers.

From this distance, it is almost impossible for us to weigh proof a jury has seen and heard. Further, I think it is unwise for a law court to reverse convictions based on our belief—contrary to the jury’s—that there may be a reasonable doubt of defendant’s guüt. I would urge the District Attorney to undertake a fresh and unbiased review of the case and investigate fully all the evidence, including proof not part of the record before us.

I recognize that in the Appellate Division and in our Court the District Attorney has argued to uphold the conviction. That’s understandable, given the jury’s verdict and the prosecution’s natural unwillingness to undermine it. But this is a particularly disquieting case, one that calls for a new and fastidious layer of review. If on further investigation the District Attorney shares these concerns, he has the power and, I am confident, the motivation, to take whatever steps are appropriate to do justice.

G.B. Smith, J. (dissenting).

The totality of the evidence was legally insufficient to prove the identity of the defendant. Indeed, the evidence in this case raises a serious question of whether an innocent man has been convicted.

The case before us is here after a second trial. After the first trial, this Court reversed the conviction because of prosecutorial misconduct (94 NY2d 519 [2000]). In our prior opinion, we stated the facts:

“Complainant, Diane Chappelle, is the wife of the pastor of the International Baptist Church in Brooklyn, New York, and a teacher at the International Christian School, located within the church. In the early evening on April 8, 1996, complainant walked to school to prepare for class the following day. After finding her classroom in complete disarray, complainant encountered a gunman standing in the hallway approximately three feet away as she was exiting the room. She screamed, backing into the classroom with her hands up and observing the gunman for approximately 5 to 10 seconds before closing her eyes as instructed. The gunman further rummaged through the classroom looking for money and stole complainant’s wedding ring. He then tied complainant’s hands and feet with a cord while searching the church for money. When complainant was certain that the gunman had fled, she freed herself, ran home and called the police” (94 NY2d at 521).

The complainant gave substantially the same testimony at the second trial. She testified that she observed defendant for more than a glimpse. She also described herself as “upset” and “disoriented.” She identified defendant as the perpetrator and testified that she picked him out of a lineup.

After the second trial, defendant was convicted of robbery in the first degree and burglary in the second degree. That conviction was affirmed by the Appellate Division.

There are several reasons why the conviction in this case should not be upheld. First, the only issue in this case, as it was in the first, was identification. The complaining witness observed the defendant only for a matter of seconds before she was told not to look at him. The complaining witness was “upset” and “disoriented” by the encounter. Her original description of the perpetrator was that he was of slight build. The defendant in this case weighed 215 pounds and was 5 feet, 7 inches tall and such a person is not of slight build. It is true, as the majority emphasizes, that the complaining witness was, judging from the record, a perfectly honest woman and a “religious school teacher.” (Majority op at 83.) It is even possible that she is one of those rare people who, having glimpsed a stranger for seconds in the midst of a terrible emotional trauma, could reliably identify that stranger months later—but the record does not support a finding beyond a reasonable doubt that she did so here.

Second, apart from the complaining witness’s unreliable identification, no evidence of substance connects defendant to the crime. While there is some indication that the defendant was apprehended because he lived in the area, the evidence was that the defendant actually lived 1.2 miles away in a densely populated area of Brooklyn. The majority (at 83) relies on defendant’s question, “Did she really pick me out?,” asked at a time when, the police testimony indicates, no one had told him the victim was a woman. But the same testimony indicates that no one had told him he was “picked out of photos.” Either he was guessing about the photos, in which case, why not also about the sex of the victim, or someone had told him more than the testimony discloses.

Third, a fingerprint and a palm print from a cabinet admittedly handled by the perpetrator did not match defendant’s.

The majority correctly states the applicable legal test: whether a rational trier of fact could have found, beyond a reasonable doubt, that defendant committed this crime. The test is not met. A rational person might believe that defendant is possibly or probably guilty, but it is irrational to say, on this record, that all reasonable doubt of his guilt has been eliminated. It is true that we have upheld convictions in the past based on the identification testimony of a single eyewitness, but in none of those cases was there as little reason as there is here to believe that the identification was correct.

Apart from the weakness of the evidence against defendant, there are other troubling aspects of this case. The defendant testified in the first trial that he was at home eating dinner with his parents at the time of the robbery. In the second trial, there was no alibi defense. The record indicates that the defendant’s father was suffering from heart problems and that his mother was suffering from a physical disease and depression. While the parents could have testified at the first trial and did not, neither was available to testify at the second trial.

As noted above, the conviction in the first trial was reversed by this Court because of the actions of the prosecutor. Those actions prejudiced defendant because he was unable to mount an adequate alibi defense in his second trial.

Thus, the conviction should be reversed.

Chief Judge Kaye and Judges Rosenblatt, Graffeo and Read concur with Judge Ciparick; Judge Rosenblatt concurs in a separate concurring opinion; Judge G.B. Smith dissents and votes to reverse in another opinion in which Judge R.S. Smith concurs.

Order affirmed.

      . Our review is necessarily limited to the evidence presented to the jury at the second trial. As such, neither facts presented at nor issues relevant to the first trial, such as the alibi defense or the prosecutorial misconduct, nor the inadmissible results of lie detector tests, may be considered by this Court, as urged by the dissent.

      . Although the dissent states that the victim originally described defendant as a man “of slight build” (dissenting op at 85), the victim initially described defendant as a 25-year-old white male with black hair, 5 feet, 10 inches tall. She later expanded the description to reflect that defendant was of thin-to-medium build with no facial hair.

       Although defendant received a 20-year sentence after his first trial, he refused after reversal to plead guilty in exchange for time served. While evidence of the results of a lie detector examination is inadmissible as evidence in a court of law, it is undisputed that the defendant passed two lie detector tests.