An appeals panel in Brooklyn has toppled an attempted murder conviction, casting doubt on the eyewitness identification of a complainant who admits he was drunk, high and focused on the weapon rather than the person carrying it.

People v. Bailey, 2013 NY Slip Op 00101, comes at a time of increasing concern over the reliability of eyewitness identification. Indeed, the day the decision was released by the Appellate Division, Second Department, Governor Andrew Cuomo in his State of the State address called for new, tougher procedures in photo identification procedures (NYLJ, Jan. 10). Additionally, Chief Judge Jonathan Lippman (See Profile) has called for eyewitness identification reform as a antidote to wrongful convictions.

In this case, defendant Clarence Bailey was convicted in Brooklyn of attempted second-degree murder after prosecutors convinced a jury that he was the man who had pointed a semi-automatic pistol at the complainant and pulled the trigger, but the weapon did not fire.

Nonetheless, a unanimous Second Department panel, describing its role as that of a “13th juror” conducting an independent review of the weight of the evidence, concluded the evidence was too skimpy to establish guilt beyond a reasonable doubt.

On the night of May 5, 2007, the complainant had about 10 drinks and smoked marijuana while watching a televised boxing match. The complainant and his friends then walked to a nearby club, where they became involved in a brawl. At one point, someone pointed a gun at the complainant and pulled the trigger, but the gun did not fire.

Two months after the incident, the complainant picked Clarence Bailey, whom he had never seen before, out of a lineup as his assailant. He repeated the identification at trial.

In a 4-0 decision on Jan. 9, the Second Department reversed. The justices said they were not questioning the complainant’s honesty, but expressed serious doubts about his reliability.

“First, by the complainant’s own admission, he was intoxicated from both alcohol and marijuana at the time of the incident,” the court said in an opinion joined by justices Mark Dillon (See Profile), Ruth Balkin (See Profile), Cheryl Chambers (See Profile) and L. Priscilla Hall (See Profile). “Additionally, the complainant’s attention was focused on the gun, rather than the gunman, during this brief incident, so the complaint did ‘not fully’ have a good opportunity to view the gunman.”

In dismissing the indictment, the panel observed that the complainant did not recall whether the perpetrator had facial hair and did not recall any scars on the gunman’s face, even though Bailey has a prominent facial scar.

Bailey was convicted at a trial before Supreme Court Justice Albert Tomei (See Profile).

Cuomo, in his annual message to the Legislature on Jan. 9, said that 75 percent of the wrongful convictions in the state resulted from faulty eyewitness identifications. The governor called for legislation that would permit the admission of eyewitness photo identifications only where the witness and the person conducting the test do not know which of the individuals in the photo array is the suspect.

“Mistaken eyewitness identification has been cited as the leading contributor to wrongful convictions,” the governor said in the written version of the address. “Not only do such convictions result in the incarceration of the innocent, but they allow actual perpetrators to remain free. Reducing wrongful convictions is therefore essential to both protecting public safety and ensuring fairness in our criminal justice system.”

Leonard Joblove and Ann Bordley appeared for the Brooklyn District Attorney’s Office, with Jesse Oppenheim on the brief.

Alexander Donn of Appellate Advocates, who represented Bailey, declined to comment.