People v. Gee, 72 N.Y.2d 1013 (1988)

A criminal conviction will not be reversed based on a witness’s exposure to a defendant’s photograph before trial if the defense has a full opportunity to cross-examine the witness about any discrepancies and fails to properly preserve the argument for appeal.

Summary

The New York Court of Appeals affirmed the Appellate Division’s order, holding that the defendant’s planned defense was not impaired when the People’s identifying witness saw a photograph of the defendant before testifying. The Court reasoned that defense counsel had ample opportunity to question the witness about a discrepancy between the photograph (depicting the defendant with a “light beard”) and her earlier description of the perpetrator as “clean cut.” The Court emphasized that the lack of surprise for the witness was not sufficient prejudice to warrant reversal and that the defendant failed to properly raise the argument for a new or reopened Wade hearing.

Facts

The People’s identifying witness saw a photograph of the defendant on the morning she was scheduled to testify at trial. The photograph depicted the defendant as having a “light beard.” This arguably conflicted with the eyewitness’s earlier description of the perpetrator as “clean cut.” Defense counsel had the opportunity to question the eyewitness about the discrepancy in her description.

Procedural History

The defendant was accorded a Wade hearing with regard to an earlier pretrial showup. The trial court concluded that the showup was not unduly suggestive and made no determination as to the existence of an independent source for the eyewitness’s in-court identification. The defendant appealed, arguing that he was entitled to a new or reopened Wade hearing with respect to the witness’s viewing of the photograph on the morning of the trial prior to testifying. The Appellate Division affirmed the conviction. The New York Court of Appeals reviewed the Appellate Division’s order.

Issue(s)

1. Whether a planned defense is impaired when the People’s identifying witness sees a photograph of the defendant before testifying when defense counsel has a full opportunity to question the witness about any discrepancies.

2. Whether the defendant can raise the issue of being entitled to a new or reopened Wade hearing with respect to the witness’s viewing of the photograph on the morning of the trial prior to testifying when this argument was not raised in the trial court.

Holding

1. No, because defense counsel had a full opportunity to question the eyewitness about the discrepancy in her description and took ample advantage of that opportunity. The fact that the police’s actions may have deprived counsel of the added opportunity to catch the witness by surprise with respect to the discrepancy is not the type of prejudice that should lead to reversal.

2. No, because this argument was not raised in the trial court and, consequently, cannot be considered by this Court.

Court’s Reasoning

The Court reasoned that the defendant’s only preserved claim on appeal was that his planned defense was impaired when the People’s identifying witness saw a photograph of the defendant during a meeting with police on the morning she was scheduled to testify at trial. The Court acknowledged that the photograph depicted the defendant as having a