You are here: / / NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTION...

NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined the identification testimony of a police officer should not have been admitted because pretrial notice of the identification had not been provided to the defendant:

We agree with defendant … that the court erred in permitting the officer to identify defendant as the person in the left rear seat of the vehicle in the absence of a notice pursuant to CPL 710.30 (1) (b). We therefore reverse the judgment and grant that part of the omnibus motion seeking preclusion of that testimony on the ground that the People failed to serve a notice pursuant to CPL 710.30 (1) (b). The prosecutor advised the court and defense counsel after jury selection that the officer would identify defendant as the left rear passenger. Defendant objected and the court conducted a hearing, over defendant’s objection, and determined that the officer’s identification of defendant by means of a single photo approximately two hours after the incident was merely confirmatory and thus that no notice was required pursuant to CPL 710.30 (1) (b).

The exception to the requirement to provide notice pursuant to CPL 710.30 “carries significant consequences” … , and the Court of Appeals has “consistently held that police identifications do not enjoy any exemption from the statutory notice and hearing requirements” … . Unlike the buy-and-bust scenario, where the police participant is focused on the face-to-face contact with defendant with the goal of identifying him or her when he or she is picked up by a back up unit … , here, the officer was standing by the vehicle for approximately three minutes while he was engaged with all of the occupants of the vehicle. Thus, “we cannot conclude that the circumstances of [the officer’s] initial viewing were such that, as a matter of law, the subsequent identification could not have been the product of undue suggestiveness” … . Indeed, “the statute contemplates pretrial resolution of the admissibility of identification testimony’ ” … , and “[t]o conclude otherwise directly contravenes the simple procedure that has been mandated by the Legislature and would permit the People to avoid their statutory obligation merely because a police officer’s initial viewing of a suspect and a subsequent identification might be temporally related” … . People v Clay, 2017 NY Slip Op 01074, 4th Dept 2-10-17

 

CRIMINAL LAW (NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)/IDENTIFICATION (CRIMINAL LAW, NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)

You might also like
Conservative Party’s Executive Committee Had Authority to Designate Candidates for County Executive and County Clerk in Chautauqua County
PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT).
IN THIS POST-DIVORCE ACTION, THE PROCEEDS OF THE SALE OF THE PARTIES’ REAL PROPERTY SHOULD NOT HAVE BEEN DISTRIBUTED WITHOUT A FULL EVIDENTIARY HEARING (FOURTH DEPT).
QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SEX AND DISABILITY DISCRIMINATION ACTION BY A TENURED ASSOCIATE PROFESSOR ON THE EQUAL PAY ACT CAUSE OF ACTION AND CERTAIN NYS HUMAN RIGHTS LAW CAUSES OF ACTION (FOURTH DEPT).
Right to Counsel.
THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT).
NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT).
Improper to Characterize Trial as “Search for Truth”

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS... WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY...