People v. Whalen, 369 N.Y.S.2d 393 (1975)
When a witness cannot make an in-court identification but has previously identified the defendant, another witness can testify to the prior identification to establish the defendant’s identity, and such testimony is admissible as evidence in chief.
Summary
This case addresses the admissibility of testimony regarding a prior out-of-court identification when the witness is unable to make an in-court identification. Mrs. Wesey, a robbery victim, identified Whalen shortly after the crime but couldn’t identify him at trial due to a change in his appearance. Detective Ohlhausen testified about Mrs. Wesey’s prior identification. The New York Court of Appeals held that Detective Ohlhausen’s testimony was admissible under CPL 60.25, even though the trial occurred after the statute’s effective date, finding no ex post facto violation. The court reasoned that CPL 60.25 allows a third party to establish the prior identification when the original witness cannot make an in-court identification.
Facts
On March 12, 1971, Mrs. Starsy Wesey was robbed at her store, the Great Neck Garden Center. The robbers, including Whalen, were apprehended and brought back to the store shortly after the robbery. Mrs. Wesey positively identified Whalen and his accomplice to Detective Joseph Ohlhausen. Before the trial, Whalen altered his appearance by cutting his hair.
Procedural History
Whalen was indicted and tried in December 1971. At trial, Mrs. Wesey could not identify Whalen due to his changed appearance but testified to her prior identification. Detective Ohlhausen then testified that Whalen was one of the persons Mrs. Wesey had previously identified. Whalen appealed, arguing that Detective Ohlhausen’s testimony was inadmissible. The Appellate Division affirmed the trial court’s decision, and Whalen appealed to the New York Court of Appeals.
Issue(s)
1. Whether CPL 60.25 permits a witness other than the person who made the initial identification to testify that the defendant was the person identified.
2. Whether the application of CPL 60.25 to Whalen’s trial, which occurred after the statute’s effective date but for an indictment prior to that date, violates the constitutional prohibition against ex post facto laws.
Holding
1. Yes, because CPL 60.25 specifically authorizes the admission of testimony by another person to establish that the defendant is the person whom the witness previously identified when the witness is unable to make an in-court identification.
2. No, because a statute authorizing the use of evidence not previously admissible is not an ex post facto law; CPL 60.25 involves a procedural change in the manner of proof, not a change in the elements of the crime or the amount of evidence required for conviction.
Court’s Reasoning
The court reasoned that CPL 60.25 allows for testimony from another witness to establish the defendant’s identity when the original identifying witness cannot make an in-court identification. The court rejected Whalen’s argument that the other witness’s role is limited to establishing the “sameness” of the defendant without mentioning the identification itself, stating, “Testimony that defendant is the person whom the witness previously identified is the necessary logical link between the defendant and the person identified.”
The court further held that applying CPL 60.25 to Whalen’s trial did not violate the ex post facto clause. The court cited Calder v. Bull, stating that statutes which change the rules of evidence, requiring a lesser amount of evidence, are ex post facto. Procedural changes however are not. The court noted the statute does not criminalize conduct that was legal before the statute’s enactment, nor does it increase the punishment for the crime. CPL 60.25 is a procedural rule that changes the manner of proof, and therefore its application is permissible.
The court emphasized the importance of allowing such testimony to ensure accurate fact-finding and prevent defendants from benefiting from changes in appearance. As the court highlighted, CPL 60.25 allows a third party to testify as to the facts of the out-of-court identification and is admissible as evidence in chief.
The court specifically noted that the testimony is not hearsay, as the third party is testifying to the fact that the out-of-court statement was made and not to prove the truth of that statement.