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THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT.

The Fourth Department, over a dissent, determined the identification testimony by a police officer was unreliable because the photograph upon which the officer’s identification was based was not put in evidence at the hearing. A new trial was ordered. The dissent noted that this is the first case holding an identification unreliable where an unduly suggestive police identification procedure was not involved:

At the hearing, the People attempted to introduce in evidence a photograph that was allegedly used by the undercover officer. The court refused to admit the photograph in evidence, however, on the grounds that the People failed to produce it during discovery and that, in their discovery responses, the People expressly denied the existence of any photographs in the People’s possession. Thus, the photograph, i.e., the linchpin to the undercover officer’s identification of defendant, was not before the court, and we conclude that its absence created a presumption of unreliability in the pretrial identification of defendant by the undercover officer … .

We further note that the People failed to adduce any evidence detailing the procedures used to obtain the photograph at issue … . The undercover officer testified that he was given the name “Kevin Reeves” by a confidential informant. The confidential informant did not testify. Significantly, the officer could not recall if the confidential informant gave him any identifying factors about “Kevin Reeves” such as height, description, or skin color. The officer testified that he entered the name “Kevin Reeves” into a law enforcement computer database and that his search resulted in a photograph that he printed and viewed after the drug transaction. The officer did not testify, however, as to which search criteria he used, how many photos he viewed in response to his search criteria, and how he may have distinguished among more than one photograph generated by his search. As a result of the above shortcomings in the People’s evidence, we conclude that the People failed to rebut the presumption of unreliability of the pretrial identification created by the absence of the photograph … .

FROM THE DISSENT:

I do not believe that there is any legal basis to suppress identification testimony of a defendant based on the alleged unreliability of the witness’s identification unless the identification is the product of unduly suggestive police procedures … . Indeed, a suppression court is not required to make “a threshold inquiry into the reliability of . . . identification testimony” … , and “the reliability of untainted in-court identification testimony presents an issue of fact for jury resolution’ “… .

This is the first reported case in New York where identification testimony has been suppressed in the absence of a finding that the identification was influenced by unduly suggestive police procedures. People v Reeves, 2017 NY Slip Op 05526, 4th Dept 7-7-17

CRIMINAL LAW (IDENTIFICATION, THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)/EVIDENCE (CRIMINAL LAW, IDENTIFICATION, THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)/IDENTIFICATION (CRIMINAL LAW, THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)/PHOTOGRAPHS (CRIMINAL LAW, IDENTIFICATION,  THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)

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