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DEFENSE COUNSEL MOVED TO SUPPRESS AN UNNOTICED EYEWITNESS IDENTIFICATION OF THE DEFENDANT AFTER BEING TOLD THE IDENTIFICATION WOULD BE PRECLUDED IF HE DID NOT MOVE TO SUPPRESS; DEFENSE COUNSEL INTRODUCED DEFENDANT’S MUG SHOT DESPITE THE SUPPRESSION OF THE PHOTO ID; DEFENSE COUNSEL DID NOT OBJECT TO A DETECTIVE’S IMPROPER IDENTIFICATION OF THE DEFENDANT IN A BLURRY VIDEO; THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defense counsel moved to suppress an unnoticed eyewitness identification knowing that the evidence would have been precluded had he not moved to suppress. Defense counsel introduced the mug shot of the defendant, despite the suppression of the photo identification. Defense counsel did not object to the improper identification of the defendant in a blurry video by a detective:

The record does not support the hearing court’s determination that counsel’s waiver of preclusion of the unnoticed identification made by the sole eyewitness to the shooting was a legitimate trial strategy … . … [T]rial counsel initially did not appreciate that by moving to suppress the identification, he waived preclusion of the unnoticed identification under CPL 710.30(3). …

… [A]lthough the suppression hearing court had suppressed this witness’s photo identification of defendant, counsel nevertheless introduced at trial the mug shot shown to the witness. …

… [T]rial counsel did not object to a detective’s improper identification of defendant in a blurry video … . People v McCray, 2023 NY Slip Op 00502, First Dept 2-2-23

Practice Point: If the People do not provide timely notice of an identification of the defendant, the evidence will be precluded. If however a motion to suppress the identification is made, it will not be precluded. Here making the motion to suppress was deemed ineffective assistance.

Practice Point: Counsel was ineffective for introducing the mug shot of the defendant after the photo identification had been suppressed.

Practice Point: Counsel was ineffective for failing to object to a detective’s improper identification of the defendant in a blurry video.

 

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