In People v. Mark Watkins, __NY3d __ (May 23, 2024), where the defendant and his victim were of different races, the defendant sought reversal of an Appellate Division affirmance and a new trial, contending his counsel was ineffective in not requesting a cross-racial identification instruction at the close of his July 2017 trial where he was found guilty of assault in the first degree and lesser charges.

The majority opinion by Judge Caitlin Halligan explains at some length why the Court of Appeals affirmed the Appellate Division’s order. Essentially, because the trial took place six months before the Court of Appeals decided People v. Boone, 30 NY3d 521 (2017), holding “such an instruction is now mandatory upon request ‘when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races,’ in light of the higher ‘likelihood of misidentification’ and the ‘significant disparity between what the psychological research shows and what uninstructed jurors believe’ regarding the impact of this cross-race effect (30 NY3d 521, 526, 528-529, 535-536 [2017]).” __NY3d at __ (uncorrected opinion, 1-2).