People v. Quevas, 81 N.Y.2d 41 (1993)
Under New York Criminal Procedure Law § 60.25, before a third party can testify about a witness’s prior identification of the defendant, the prosecution must establish that the witness cannot currently identify the defendant based on present recollection.
Summary
Quevas was convicted of sodomy and related crimes. The prosecution introduced testimony from a police officer regarding the complainant’s prior out-of-court identification of Quevas. The New York Court of Appeals reversed the conviction, holding that the prosecution failed to lay a proper foundation for the officer’s testimony. Specifically, the prosecution did not adequately establish that the complainant’s inability to identify Quevas in court stemmed from a lack of present recollection, as required by CPL 60.25, rather than other factors such as fear or visual impairment. The court emphasized the importance of establishing the reason for the witness’s failure to make an in-court identification before allowing third-party identification testimony.
Facts
The complainant, a 14-year-old, testified that he was sodomized by Quevas and another man. During the trial, the prosecutor asked the complainant if he could identify either of the perpetrators in the courtroom. The complainant repeatedly stated, “Nope.” The complainant had previously identified Quevas to a police officer during a search of the area where the crimes occurred. The defense argued that because the complainant stated that the perpetrator was not in the courtroom (rather than stating he didn’t remember), the police officer should not be allowed to testify about the prior out-of-court identification.
Procedural History
Quevas was convicted in the trial court. The trial court allowed the police officer to testify about the complainant’s out-of-court identification. Quevas moved to set aside the verdict, arguing that the officer’s testimony was improperly admitted. The trial court denied the motion. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed the Appellate Division’s order and ordered a new trial.
Issue(s)
Whether the prosecution laid a proper foundation under CPL 60.25 to permit a police officer to testify about the complainant’s prior out-of-court identification of the defendant, given the complainant’s explicit denial that the perpetrator was present in the courtroom.
Holding
No, because the prosecution failed to establish that the complainant’s inability to identify Quevas in court was due to a lack of present recollection, as opposed to other possible reasons, such as fear, visual impairment, or the possibility that Quevas was not the perpetrator.
Court’s Reasoning
The court emphasized that CPL 60.25 requires the prosecution to establish a lack of present recollection before introducing third-party identification testimony. The court noted that the complainant’s testimony was ambiguous and did not definitively establish a lack of present recollection. The court stated, “In order to lay a proper foundation under CPL 60.25 there must be testimony from the witness which establishes a lack of present recollection of the defendant as the perpetrator.” The court also pointed out that the trial court itself had suggested several possible reasons for the complainant’s failure to identify Quevas, including visual impairment and a failure to look carefully at the defendant. Because the prosecution did not establish that the complainant’s inability to identify Quevas stemmed from a lack of present recollection, the court held that the admission of the police officer’s testimony was erroneous. The Court of Appeals distinguished this case from situations where the witness is afraid to make an in-court identification, noting that here, the reason for the failure to identify was not adequately explored.