VOICE IDENTIFICATION – New York Appellate Digest

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

The Fourth Department noted that voice identification testimony should not have been allowed because the people did not provide notice of it and it was not merely confirmatory. The error was deemed harmless however:

We agree with defendant that the court erred in allowing one of the victims to offer voice identification testimony at trial. Prior to trial, the prosecutor had the victim listen to recordings of telephone calls allegedly made by defendant from jail, and the victim identified the voice of the person making the calls as belonging to defendant. The victim offered similar testimony at trial over defendant’s objection. Because the People failed to provide defendant with notice of the pretrial voice identification procedure as required by CPL 710.30 (1) …, the voice identification testimony was admissible at trial only if the identification was merely confirmatory as a matter of law … . Contrary to the People’s contention, the victim’s identification of defendant’s voice was not merely confirmatory inasmuch as the victim acknowledged that, although he had heard defendant speak a number of times in the neighborhood, he and defendant had never actually spoken to each other. We thus conclude that the People did not establish as a matter of law that the victim was so familiar with defendant’s voice that “the identification at issue could not be the product of undue suggestiveness” … . People v Ramos, 2015 NY Slip OOp 00049, 4th Dept 1-2-15

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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

(Harmless) Error to Admit Voice Identification Testimony—The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory

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