You are here: / LINE-UP IDENTIFICATION

Tag Archive for: LINE-UP IDENTIFICATION

,

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

 

,

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

 

,

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

 

, ,

Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed

The Second Department reversed defendant’s convictions, dismissed the counts which violated the merger doctrine, and ordered a new trial on the remaining counts.  The merger doctrine precluded the kidnapping counts because the restraint of the complainants was inseparable from the burglary count of which defendant was convicted. Supreme Court should have suppressed statements made after defendant invoked his right to counsel and should not have allowed identification evidence stemming from a lineup about which defendant’s attorney was not informed. On remand, the court must conduct an “independent source” hearing to determine if the witness can identify the defendant without reliance on the tainted lineup. The Second Department also noted that prior uncharged-crime evidence was improperly admitted to prove “identity:”

The defendant correctly contends that his conviction of four counts of kidnapping in the second degree must be vacated by virtue of the merger doctrine. Under the circumstances of this case, the merger doctrine precludes the convictions of kidnapping in the second degree because the restraint of the complainants was essentially incidental to and inseparable from the count of burglary of which the defendant was convicted … . …

…[T]he hearing court erred in denying those branches of his omnibus motion which were to suppress a statement that he made to law enforcement officials and lineup identification testimony. “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . The defendant, who was in custody, invoked his right to counsel prior to waiving his Miranda rights (see Miranda v Arizona, 384 US 436, 444) and giving a statement to law enforcement officials. Since the defendant gave a statement to those officials in the absence of counsel, and after the right to counsel had indelibly attached, the Supreme Court should have suppressed the statement.

Similarly, the defendant’s right to counsel was also violated when police officers conducted a lineup without apprising the defendant’s attorney and affording the attorney a reasonable opportunity to participate … . Since there was no independent source hearing conducted in connection with an in-court identification of the defendant by one of the complainants, the Supreme Court must conduct a hearing, unless waived by the defendant, to determine whether there was an independent source for the in-court identification or, conversely, whether that identification was tainted by the improperly conducted lineup, and thereby rendered inadmissible … . People v Garnes, 2015 NY Slip Op 03381, 2nd Dept 4-22-15

 

,

Testimony Insufficient to Overcome Presumption Photo Arrays, Which Were Not Preserved, Were Unduly Suggestive—Subsequent Line-Up, Which Included Persons Much Older than Defendant, Was Unduly Suggestive—New Trial Ordered

The Second Department determined both identification procedures were unduly suggestive and ordered a new trial.  The People did not preserve the photo arrays and the testimony about the photo arrays was insufficient to overcome the presumption the arrays were suggestive.  The subsequent line-up included persons much older that the 18-year-old defendant and, therefore, was unduly suggestive:

The Supreme Court erred in denying that branch of the defendant's omnibus motion which was to suppress identification testimony. The People's failure to preserve the original photographic arrays viewed by the complainants gave rise to a presumption of suggestiveness, and the People did not present sufficient evidence to rebut that presumption … . The fact that the police failed to preserve the arrays viewed by the complainants does not warrant suppression in and of itself. However, the detective's testimony at the suppression hearing as to how the computerized procedure operated was insufficiently detailed to establish its fairness … . The detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array. Furthermore, he did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification. Therefore, the evidence did not overcome the presumption that the arrays were suggestive … . Although the police had not yet focused on any particular suspect, it cannot be said that the sheer volume of photographs viewed was sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants … .

We need not address whether the subsequent lineup was sufficiently attenuated in time from the photo identification procedure to nullify any possible taint, because the lineup procedure was also unduly suggestive … . While there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance, the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification … . Upon our review of a photograph of the lineup viewed by the complainants, it is apparent that the defendant and one of the fillers appear to be of similar ages, but the other three fillers appear visibly older than the defendant … . The age disparity was sufficiently apparent as to orient the viewer toward the defendant as a perpetrator of the crimes charged … . People v Robinson, 2014 NY Slip Op 09024, 2nd Dept 12-24-14

 

,

Lineup Was Unduly Suggestive

The Second Department determined the pretrial lineup identification procedure was unduly suggestive and sent the case back for an inquiry into whether the complainant had an independent source for the in-court identification:

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 … . Since 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, we remit the matter to the Supreme Court, Richmond County, to provide them with an opportunity to do so … . Pending a hearing and determination on that issue, the appeal is held in abeyance. People v Pena, 2014 NY Slip Op 08667, 2nd Dept 12-10-14 

 

,

When the Police Are Aware Suspect Is Represented by an Attorney and the Attorney’s Assistance Is Specifically Requested, the Attorney Must Be Contacted Before Conducting a Lineup Identification Procedure

Although the issue was not raised by the facts in the case, the Second Department noted the proper procedure for a lineup when the police are aware the suspect is represented by an attorney:

Where police are “aware that a . . . defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney,” the police may not proceed with a lineup procedure, “without at least apprising the defendant’s lawyer of the situation and affording him or her an opportunity to appear” … . People v Blyden, 2014 NY Slip Op 02448, 2nd Dept 4-9-14

 

,

Illegal Arrest Did Not Taint Identification Procedure – Attentuation Doctrine Applied

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the defendant’s identification in a line-up, after an admittedly illegal arrest, was not tainted by the arrest under the doctrine of “attenuation.”  The operative legal principles were described as follows:

The sergeant’s initial arrest of defendant was without probable cause and therefore illegal. But evidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule…. Instead, the People “must have ‘somehow exploited or benefitted from [the] illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ obtained by the police”….

Defendant claims that the lineup identification must be suppressed because it was the product of an illegal arrest. In order to counter that challenge, the People were required to demonstrate that the identification was “acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” …, i.e., that the taint of the illegal arrest was “attenuated” …. In order to determine whether attenuation exists, the court must “consider the temporal proximity of the arrest and [the evidence at issue], the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct”…. *  *  *

By the time the sergeant effected the illegal arrest, the detective already had in his possession sufficient evidence to establish probable cause for defendant’s arrest. People v Jones, No 125, CtApp 6-25-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy