People v. Gee, 99 N.Y.2d 421 (2003)
The “confirmatory identification” exception to the requirement of CPL 710.30 notice (for pretrial identifications) does not apply when a police officer’s initial observation of a suspect is fleeting, unreliable, and susceptible of misidentification, even if the initial encounter and subsequent identification are temporally related.
Summary
Defendant was convicted of attempted burglary based on an officer’s identification. The officer initially saw the suspect briefly at night on a fire escape from 40-50 feet away and later identified the defendant on the street. The prosecution failed to provide CPL 710.30 notice of the identification. The Court of Appeals held that the identification was not a “confirmatory identification” exempt from the notice requirement because the initial viewing was not sufficiently clear to eliminate the risk of misidentification. Therefore, the defendant was entitled to a Wade hearing to determine whether the identification was unduly suggestive, and failure to provide notice was reversible error.
Facts
Michael Todd observed someone on a fire escape attempting to open windows and called 911. Police officers responded, and Officer Cremin saw a person on the fire escape for a few seconds from 40-50 feet away at night before the person fled. Officer Cremin described the suspect over the radio. Another officer apprehended the defendant nearby, and Officer Cremin identified him as the person he saw on the fire escape approximately 30 minutes after the initial 911 call. The prosecution did not provide notice of this pretrial identification.
Procedural History
The trial court permitted Officer Cremin to testify about the out-of-court identification and to identify the defendant at trial, finding that no CPL 710.30 notice was required. The Appellate Division affirmed the conviction, deeming the identification a “confirmatory identification.” The Court of Appeals reversed, holding that the identification was not exempt from the notice requirement and ordered a new trial.
Issue(s)
Whether a police officer’s identification of a suspect is exempt from the CPL 710.30 notice requirement as a “confirmatory identification” when the officer’s initial observation of the suspect was brief, at night, and from a distance.
Holding
No, because the circumstances of Officer Cremin’s initial viewing were not such that, as a matter of law, the subsequent identification could not have been the product of undue suggestiveness. Therefore CPL 710.30 (1)(b) notice was required.
Court’s Reasoning
CPL 710.30 requires the prosecution to provide notice of pretrial identifications to allow the defendant to challenge their reliability at a Wade hearing. The “confirmatory identification” exception, established in People v. Wharton, applies only when there is no risk of misidentification. This exception is limited to situations where the identifying witness knows the defendant so well that police suggestiveness could not taint the identification or where a trained undercover officer identifies a suspect immediately after a planned buy-and-bust operation, ensuring that an innocent person is not mistakenly arrested.
The Court emphasized that “[c]omprehensive analysis, not superficial categorization, ultimately governs.” People v. Gordon, 76 N.Y.2d 595, 601 (1990). The quality of the initial viewing is critical. Because Officer Cremin’s initial observation was brief, at night, and from a distance, it was not sufficiently clear to eliminate the risk of misidentification. The Court reasoned that extending the “confirmatory identification” exception to fleeting and unreliable observations would eliminate the protections offered by a Wade hearing and contravene the procedure mandated by the Legislature. “Misidentifications should be carefully guarded against lest innocent persons be swept into unlawful arrests and convictions.” Id. at 601.