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SHOWUP IDENTIFICATION TESTIMONY SUPPRESSED, CONVICTIONS REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions, determined that the showup indentification testimony should have been suppressed. The showup took place 90 minutes after the occurrence of the crime, in a hospital parking lot, where defendant was handcuffed and flanked by officers. The victim had already identified the defendant in a hospital-room showup procedure:

We conclude that, “[g]iven the identification made by the victim” during the first showup, the noncomplainant witness’s identification conducted far from the scene of the crime “is not rendered tolerable in the interest of prompt identification” … . The identification was also unjustified insofar as the noncomplainant witness was not present at the hospital as a victim … . The People have proffered no reason that a lineup identification procedure would have been unduly burdensome under the circumstances … . Absent any exigency or spatial proximity to the crime scene, and given that the showup occurred “approximately 90 minutes after the occurrence of the crime, while defendant was handcuffed and” flanked by police, we conclude that, under the totality of the circumstances, the second “showup identification procedure was infirm” … . …

Inasmuch as the witness who identified defendant in the second showup procedure did not testify at the Wade hearing, “the People did not establish that [he] had an independent basis for [his] in-court identification of defendant” … , and “there is no evidence upon which this Court can base such a determination” … . We therefore conclude that defendant is entitled to a new Wade hearing on that issue … . People v Knox, 2019 NY Slip Op 02230, Fourth Dept 3-22-19

 

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