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ALTHOUGH IT WAS ERROR TO DENY THE DEFENSE REQUEST FOR A RODRIGUEZ HEARING BASED UPON THE PROSECUTOR’S ASSERTION THE COMPLAINANT AND THE DEFENDANT KNEW EACH OTHER, THE TRIAL TESTIMONY DEMONSTRATED THE COMPLAINANT AND DEFENDANT IN FACT KNEW EACH OTHER; THE DISSENT ARGUED THE COURT OF APPEALS REQUIRES THAT THE IDENTIFICATION ISSUE BE RESOLVED BEFORE TRIAL (SECOND DEPT).

The Second Department affirmed defendant’s conviction over a substantive dissent. Arguing against a Wade hearing addressing the suggestiveness of the complainant’s identification of the defendant from single photograph displays, the prosecutor told the judge the complainant and the defendant knew each other and the identification procedures were merely confirmatory. Defendant denied knowing the complainant and requested a Rodriguez hearing. The judge denied the request based on the People’s assertion the identification procedures were confirmatory. The denial of the Rodriguez hearing was deemed to be error, but the majority concluded the hearing was not necessary because the trial testimony demonstrated the complainant knew the defendant. The dissent argued the Court of Appeals, in the Rodriguez case, required resolution of the identification issue before trial:

The Supreme Court erred in relying on the People’s mere assurances of familiarity in denying the defendant’s pretrial request for a Rodriguez hearing  … . Nevertheless, a hearing with regard to the single-photograph identifications made by the complainant soon after the shooting was ultimately unnecessary inasmuch as the complainant’s trial testimony demonstrated that he was sufficiently familiar with the defendant, whom he knew and referred to by the defendant’s street name,”Chulo,” such that the complainant’s identification of the defendant from the photo display was merely confirmatory … . * * * When a crime has been committed by a . . . long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person'” … . Any suggestiveness of the initial photo identification procedure or the purported taint thereafter was not a concern since ” the protagonists are known to one another'” … . ​People v Carmona, 2020 NY Slip Op 03672, Second Dept 7-1-20

 

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