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“TRIAL PREPARATION” EXCEPTION TO A DETERMINATION WHETHER A PHOTOGRAPHIC DISPLAY IS UNDULY SUGGESTIVE, IN THE FORM OF A HERNER HEARING, SHOULD NO LONGER BE EMPLOYED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion by Judge Lippman, held that the “trial preparation” exception to a determination whether a photographic display is unduly suggestive, in the form of a Herner hearing, should no longer be employed. The complainant was shown a photograph of the defendant shortly before trial, ostensibly as part of “trial preparation.” Defense counsel asked for a full-fledged Wade hearing to determine whether the single-photograph-showing was unduly suggestive.  Instead only a Herner hearing was held to determine if a judicial determination of suggestiveness was needed. The trial court determined no judicial determination of suggestiveness was necessary. Although the Court of Appeals found the trial court erred in not conducting a full Wade hearing, it further found the complainant’s identification of defendant was otherwise validated by an “independent source.” The dissent disagreed and argued the conviction should be reversed:

Defendant claims that the trial preparation exception recognized in Herner is inconsistent with New York’s approach to suggestive pre-trial identifications. We agree. By employing this truncated hearing protocol, the court failed to reach the essential question whether the photograph display was unduly suggestive, and, if so, whether it tainted complainant’s identification of defendant. When a defendant challenges the suggestiveness of an out-of-court viewing of defendant’s likeness, the central issue presented for judicial consideration is whether the pre-trial display is conducted under circumstances bearing the earmarks of improper influence and unreliability, which create the risk of mistaken identification and thus infect the truth-seeking process. People v Marshall, 2015 NY Slip Op 09313, CtApp 12-17-15

CRIMINAL LAW (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/IDENTIFICATION (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/HERNER HEARING (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/WADE HEARING (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)

FAILURE TO PRESERVE PHOTO ARRAY GIVES RISE TO A REBUTTABLE PRESUMPTION THE PHOTO ARRAY WAS SUGGESTIVE; THE PRESUMPTION CAN BE REBUTTED BY DETAILING THE PROCEDURES USED TO SAFEGUARD AGAINST SUGGESTIVENESS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion by Judge Abdus-Salaam, adopted an analytical framework for determining whether a photo array which has not been preserved is unduly suggestive. When a  photo array is not preserved, a presumption arises that the array was suggestive. That presumption can be rebutted. If the presumption is rebutted, the burden of demonstrating undue suggestiveness passes to the defendant. Here, the victim was shown over 100 computer generated images after the police entered criteria based upon eyewitness-descriptions of the perpetrator. Because those images were not preserved, a presumption of suggestiveness arose. Evidence that the victim picked out the defendant, and only the defendant, from the 100 images rebutted that presumption. Defendant thereafter did not meet his burden of showing undue suggestiveness:

Under Appellate Division case law, “the failure of the police to preserve a photographic array [shown to an identifying witness] gives rise to a rebuttable presumption that the array was suggestive” … . The rebuttable presumption fits within the burden-shifting mechanism in the following manner. Failure to preserve a photo array creates a rebuttable presumption that the People have failed “to meet their burden of going forward to establish the lack of suggestiveness” … . To the extent the People are silent about the nature of the photo array, they have not met their burden of production. On the other hand, the People may rebut the presumption by means of testimony “detailing the procedures used to safeguard against suggestiveness” …, in which case they have met their burden, and the burden shifts to the defendant. Although we have not expressly adopted this presumption of suggestiveness before, we endorse it now. People v Holley, 2015 NY Slip Op 09314, CtApp 12-17-15

CRIMINAL LAW (PHOTO ARRAY, PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)/IDENTIFICATION (PHOTO ARRAY, PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)/PHOTO ARRAY (PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)

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Lineup Was Unduly Suggestive, Court Suggested Everyone In the Lineup Should Have Been Given an Eye Patch Because the Complainant Described the Perpetrator as Having a “Deformed Eye”

The First Department reversed defendant’s conviction and ordered a new trial because the lineup in which defendant was identified by the complainant was unduly suggestive. The complainant had described the perpetrator as having a “deformed eye,” and defendant was the only person in the lineup with that feature. The court suggested having everyone in the lineup wear an eye patch:

The complainant described the perpetrator of the alleged robbery as having one distinctive physical feature: a “deformed right eye” which “appeared to be something further into his head.” At the suppression hearing, the detective who prepared a photo array and a postarrest lineup testified that, in each instance, defendant was the only participant who had an “apparently defective eye.” Under the circumstances, we find that the photo array and lineup were unduly suggestive because “only the defendant matche[d] a key aspect of the description of the perpetrator,” namely, a deformed right eye … . While we recognize the practical difficulties in finding fillers with similarly defective eyes, or photographs of such persons, “[a] simple eye patch provided to each of the lineup participants or a hand over an eye would have sufficed to remove any undue suggestiveness of the procedure” …, and similar measures could have been taken with regard to the photos. People v Perry, 2015 NY Slip Op 08046, 1st Dept 11-5-15

 

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[Harmless] Error to Deny Defense a Hearing to Determine Admissibility of Testimony of Private Investigator About What Could Be Seen from a Certain Vantage Point (Calling Into Question Testimony Identifying the Defendant)

The Second Department, over a vehement and detailed dissent, affirmed defendant’s assault and attempted murder convictions. The majority and dissent agreed that defendant should have been allowed to present the testimony of a private investigator about what could be seen from a certain vantage point (calling into question testimony identifying defendant), but disagreed about whether the error was harmless. The dissent explained the defendant’s right to present a defense:

FROM THE DISSENT:

The People correctly concede that it was error by the court to preclude the defense counsel from calling his private investigator as a witness. A defendant’s right to call witnesses in his or her behalf is a constitutional right essential to due process of law … . In the absence of bad faith, the general rule is that where the defendant seeks to call a witness, the witness should be sworn and asked questions, to permit the court, upon proper objection, to rule upon the admissibility of the evidence offered … .

Here, the defense counsel’s request for a hearing on the admissibility of the witness’s testimony was improperly denied on the ground that opinion testimony from lay witnesses is inadmissible. However, there is no categorical proscription against the admission of opinions from lay witnesses … . Further, the proposed testimony about the ability to see a point from another stated vantage point constituted testimony as to the facts—and would not necessarily include opinions … . Since the defendant had a constitutional right to put forth a defense, contrary to the conclusion of my colleagues, the error cannot be deemed harmless … . People v Smith, 2015 NY Slip Op 07043, 2nd Dept 9-30-15

 

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Evidence of Photo-Array Identification Properly Allowed to Counter Inference Line-Up Was Suggestive (Defendant Restrained in Line-Up)

The Second Department determined the identification of the defendant in a photo-array was properly allowed in evidence because the defendant was restrained in the line-up, which could give rise to an inference the line-up was suggestive:

Under the circumstances of this case, the Supreme Court properly allowed the admission of evidence concerning the pretrial photographic identification of the defendant made by one of the two complainants. The evidence elicited at a suppression hearing established that the defendant had to be restrained during the lineup at which the complainants identified him due to his uncooperative behavior. Since the restraint of the defendant during the lineup could give rise to an inference that the lineup was suggestive, and the lineup identification made by the complainants was therefore unreliable, the People were properly permitted to counter this inference by introducing evidence of the prior photographic identification… . People v Adamson, 2015 NY Slip Op 06672, 2nd Dept 8-26-15

 

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Unduly Suggestive Line-Up Required a New Trial

The Second Department ordered a new trial because the hearing court erroneously concluded the line-up was not unduly suggestive. The defendant was the only person in the line-up wearing a red shirt (which was a prominent part of the description of the assailant by the complainant).  A new trial was necessary because the People did not have the opportunity to demonstrate whether there was an independent source for the complainant’s identification:

The hearing court erred in concluding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant’s clothing that the complainant gave to the police. Thus, at the lineup, the defendant’s red shirt improperly drew attention to his person … .

The hearing court’s erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant’s in-court identification. Since the People did not have an opportunity to establish the existence of an independent source, if any, a new trial is required, to be preceded by an independent source hearing … . People v Pena, 2015 NY Slip Op 06681, 2nd Dept 8-26-15

 

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The People Were Required to Give Pre-Trial Notice of an Out-of-Court Identification of Defendant by Officer Viewing the Controlled Buy from Across the Street—Identification Was Not So Free From the Risk of Undue Suggestiveness that It Could Be Considered Merely “Confirmatory”—Error Was Harmless In the Face of Overwhelming Evidence

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the People were required to provide the pre-trial statutory notice of the intent to introduce evidence of an out-of-court identification of the defendant by the officer (Detective Vanacore) who viewed the underlying controlled drug purchase (by an undercover officer) from across the street. The error was deemed harmless however.  Noting that the identification at issue was not so free from the risk of undue suggestiveness as to render the identification merely “confirmatory,” the court offered a clear explanation of the reasons for the statutory pre-trial notice requirement:

“CPL 710.30 could not be clearer” … . When the People intend to offer at trial “testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such,” the statute requires the People to notify the defense of such intention within 15 days after arraignment and before trial (CPL 710.30 [1] [b]). Not only is “[t]he statutory mandate . . . plain” but the procedure is “simple” … . The People serve their notice upon defendant, the defendant has an opportunity to move to suppress and the court may hold a Wade hearing (see id.). If the People fail to provide notice, the prosecution may be precluded from introducing such evidence at trial.

The notice statute was “a legislative response to the problem of suggestive and misleading pretrial identification procedures” … . In enacting the notice requirement, the Legislature “attempt[ed] to deal effectively with the reality that not all police-arranged identifications are free from unconstitutional taint” … .

The purpose of the notice requirement is two-fold: it provides the defense with “an opportunity, prior to trial, to investigate the circumstances of the [evidence procured by the state] and prepare the defense accordingly” and “permits an orderly hearing and determination of the issue of the fact . . . thereby preventing the interruption of trial to challenge initially the admission into evidence of the [identification]” … . Thus, the statute contemplates “pretrial resolution of the admissibility of identification testimony where it is alleged that an improper procedure occurred” … . * * *

Detective Vanacore’s surveillance of defendant does not constitute an “observation of . . . defendant . . . so clear that the identification could not be mistaken” thereby obviating the risk of undue suggestiveness … . Therefore, the People were required to serve their notice concerning Detective Vanacore’s observations. People v Pacquette, 2015 NY Slip Op 05595, CtApp 6-30-15

 

Cumulative Effect of Several “Suggestive” Factors Rendered the Show-Up Identification Inadmissible

The First Department, in a full-fledged opinion by Justice Gische, over a dissent, determined the show-up identification of the defendants was unduly suggestive and should have been suppressed. While none of the “suggestive” factors alone would have been sufficient to invalidate the identification, the cumulative effect of all the factors rendered the identification inadmissible. The defendants were handcuffed and standing together in a well-lit garage, surrounded by police officers.  The driver of the police car carrying the complainant, who had been assaulted an hour before by “three or four black teens,” shown the car’s headlights and “takedown” lights on the defendants. The defendants, none of whom were “teens,” and one of whom was light-skinned, were covered in soot. The complainant looked at the defendants through the police car’s mesh divider and windshield.  In addition to noting there were no “exigent circumstances” mandating the show-up procedure, the court described the factors which cumulatively rendered the show-up inadmissble at trial as follows:

Here, the three suspects were standing side by side after the complainant had described her attack by multiple attackers. Defendants were flanked by as many as eight officers and, apart from the complainant, they were the only civilians present. Defendants were visibly restrained. This was obvious, not only from the fact that their hands were behind their backs, but also from the fact that defendant Santiago, who had visible physical injuries to his face indicative of a recent scuffle, was being physically restrained by one of the officers as the complainant made her identification. Defendants were covered in soot, such that it affected their appearance, particularly as to skin color. Previously, the complainant had described her assailants’ “black” skin color as a prominent identifying feature, along with their ages. As the complainant was driven from the precinct to the location of the showup identification, she was told that she would be looking at people, and that she should tell the officers if she had seen them before. When defendants were shown to the complainant, they were illuminated by the patrol car’s headlights and takedown flood lights, even though the garage lighting itself was good.

We recognize that some of these factors, either alone or even in combination do not necessarily make a showup identification unduly suggestive. A showup identification may be acceptable, even where a defendant is handcuffed and guarded by police officers when shown to the complainant … . Nor is the fact that remarks are made to a complainant before being taken to a lineup itself a basis for a prohibited showup identification … . This is because a person of ordinary intelligence would realize that the police are showing them someone suspected of having committed a crime … . Even shining lights on a suspect is not by itself unduly suggestive … . It is the cumulative effect of what otherwise might be individually permissible that makes this particular showup identification unduly suggestive. The showup was clearly beyond the high water mark set forth by the Court of Appeals… . People v Cruz, 2015 NY Slip Op 04597, 1st Dept 6-2-15

 

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Police Officer’s Draping Defendant’s Striped Shirt Over Defendant’s Chest During a Show-Up Identification Was Tantamount to Pointing Out the Defendant as the Perpetrator—Victim Had Told the Police the Perpetrator Was Wearing a Striped Shirt

The Second Department, over a dissent, determined the show-up identification procedure was unduly suggestive, requiring suppression of the identification testimony and a new trial. The defendant did not match the description of a person who had just robbed the victim at knife-point. However, the victim said the robber was wearing a brown and white striped shirt.  When a police officer spotted the defendant, he was shirtless but was carrying a red and white striped shirt. The victim was driven to where the defendant was being held, but she was only able to identify the defendant as the robber after an officer draped the striped shirt over his chest:

Here, the active police involvement in the identification process—the police officers’ draping of the shirt over the defendant’s chest immediately after the complainant had hesitated in identifying the shirtless defendant as the perpetrator and before she did identify him—renders this showup identification procedure unduly suggestive … . The actions taken by the police officers suggested to the complainant that the defendant was the perpetrator. Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him. This action by the police is akin to the police having pointed out the defendant as the perpetrator … . People v James, 2015 NY Slip Op 03864, 2nd Dept 5-6-15

 

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Show-Up Identification Should Have Been Suppressed—Defendant Was Only Person In the Street, Was In Hand-Cuffs, and Was Surrounded by Police

The Second Department determined the complainant’s in-court and pre-trial identification of the defendant should have been suppressed. After the complainant identified the defendant in the show-up, the complainant told the police all the burglars were wearing masks.  The error, however, was deemed harmless.  Probable cause to arrest the defendant existed prior to the show-up:

Here, the hearing testimony demonstrated not only that the perpetrators’ faces were covered during the entire time the complainant was with them, but also that the only description the complainant had previously provided to the police was that the perpetrators were black males. Under these circumstances, it cannot be said that the complainant’s pretrial and in-court identification of the defendant was not founded on the fact that the defendant was the only person standing in the street, in handcuffs, surrounded by the police with high-beam headlights shining on his face, during the showup proceeding … . Nevertheless, the error in admitting this identification evidence at trial was harmless since the other evidence of the defendant’s guilt, including oral and written statements he gave to the police admitting to his participation in the burglary, was overwhelming, and there is no reasonable possibility that the error might have contributed to his conviction … . People v Williams, 2015 NY Slip Op 03390, 2nd Dept 4-22-15

 

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