New York Law Review

Tag: Confirmatory Identification

  • People v. Gee, 99 N.Y.2d 421 (2003): Limits of “Confirmatory Identification” Exception for Police Officers

    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.

  • People v. Johnson, 81 N.Y.2d 730 (1992): Requiring Wade Hearings for Showup Identifications

    People v. Johnson, 81 N.Y.2d 730 (1992)

    A Wade hearing is required to determine if a showup identification procedure was unduly suggestive, unless it falls under a recognized exception such as a confirmatory identification.

    Summary

    Following a robbery, the victim identified the defendant in a showup after police apprehended him in a building. The New York Court of Appeals held that the trial court erred in concluding, without a Wade hearing, that the identification was free from police suggestion. The Court emphasized that even though the victim initiated the pursuit of the suspect, the showup did not automatically qualify as a confirmatory identification. The court remitted the case for a Wade hearing to determine whether the showup was unduly suggestive, highlighting the potential for police influence during the pursuit and waiting period.

    Facts

    A robbery victim and his sister informed nearby police officers that he had been robbed of jewelry, allegedly at gunpoint, in his building’s elevator. The victim accompanied the officers in their marked police car, canvassing the adjacent block. The victim identified a person he believed to be the robber. As the police approached in their vehicle, the suspect, wearing a brown sheepskin jacket and a black baseball hat, fled into an apartment building. An officer pursued the suspect on foot. Backup officers arrived and searched the building. The jacket and hat were found on the third floor. The defendant was apprehended in the stairwell and presented to the victim on the ground floor landing, where the victim identified him. Neither a gun nor the stolen jewelry was recovered.

    Procedural History

    The trial court concluded, without holding a Wade hearing, that the victim’s identification was free of police suggestion. The Appellate Division affirmed. The New York Court of Appeals modified the order, remitting the case to the Supreme Court for a Wade hearing. If the hearing determined police suggestiveness tainted the showup, the defendant would be entitled to a new trial; otherwise, the judgment of conviction and sentence should be amended to reflect the hearing’s result.

    Issue(s)

    Whether a Wade hearing is required to determine if a showup identification procedure was unduly suggestive when, after a robbery, the victim identifies the defendant in a showup after police apprehended him in a building, even though the victim initially pointed out the defendant to the police.

    Holding

    Yes, because the showup identification procedure does not automatically fall into the category of confirmatory identifications, and a hearing is necessary to determine if police suggestiveness tainted the procedure.

    Court’s Reasoning

    The Court of Appeals reasoned that the trial court erred in determining the identification was free from police suggestion without holding a Wade hearing. The court noted that even though the victim initiated the police chase, the subsequent showup did not automatically qualify as a confirmatory identification, which is a recognized exception to the Wade hearing requirement. The court emphasized the need to examine the circumstances surrounding the identification to determine if it was unduly suggestive. The court stated, “Absent a hearing, it is impossible to discern whether the police had any influence on the victim during the pursuit immediately following the robbery, or to evaluate the effect on the identification procedure of the time the victim spent waiting in the police car outside the building while the police were searching for the perpetrator inside, or to determine the circumstances of the showup itself.” The court further stated, “Therefore, the courts below had no basis to determine that the police-arranged showup was free of taint, and that the victim was impervious to police suggestion.” Because the circumstances surrounding the showup identification were unclear, the Court found that a Wade hearing was necessary to determine if the procedure resulted in an unduly suggestive identification. The court distinguished the case from situations involving confirmatory identifications, where the witness has prior familiarity with the defendant, making a Wade hearing unnecessary.

  • People v. Mato, 83 N.Y.2d 406 (1994): When a Wade Hearing is Required for Undercover Identifications

    83 N.Y.2d 406 (1994)

    A Wade hearing is required when there is a significant lapse of time between an undercover officer’s initial encounter with a suspect and a subsequent identification, or when the circumstances surrounding the identification suggest a risk of misidentification, even if the identification is labeled “confirmatory.”

    Summary

    The defendant was convicted of selling drugs based on an undercover officer’s identification. The trial court denied the defendant’s motion for a Wade hearing to determine the admissibility of the identification testimony. The Court of Appeals reversed, holding that a Wade hearing was necessary due to the time lapse between the initial drug transaction and the subsequent identification, as well as the circumstances surrounding the identification. The court emphasized that a “confirmatory” identification does not automatically obviate the need for a Wade hearing and that a case-by-case analysis is required.

    Facts

    An undercover officer purchased drugs from the defendant on July 12, 1989. The officer mistakenly recorded the address of the transaction. A search warrant was issued based on this incorrect information, leading to the wrongful arrest of a family. On August 7, 1989, the undercover officer returned to the correct address and purchased drugs again. He saw the defendant standing outside the building, had a brief conversation with him, and then arrested him for the July 12 transaction. The undercover officer viewed the defendant again, handcuffed, outside the building and at the police station.

    Procedural History

    The defendant was convicted of criminal sale of a controlled substance in the second degree. The trial court denied the defendant’s motion for a Wade hearing to suppress the identification testimony. The Appellate Division affirmed. The New York Court of Appeals reversed the Appellate Division’s order and remitted the case for a Wade hearing.

    Issue(s)

    Whether the trial court erred in denying the defendant’s motion for a Wade hearing, given the time lapse between the drug transaction and the identification, the officer’s initial mistake regarding the address, and the circumstances of the subsequent viewings of the defendant.

    Holding

    Yes, because the time lapse between the initial encounter and the subsequent identification, combined with the circumstances of the identification, created a significant risk of misidentification, necessitating a Wade hearing to determine the admissibility of the identification testimony.

    Court’s Reasoning

    The Court of Appeals reasoned that the identification in this case did not meet the criteria for a “confirmatory” identification that would obviate the need for a Wade hearing. The court emphasized that a significant time lapse between the initial encounter and the identification, as seen in People v. Newball, raises concerns about the reliability of the identification. The court distinguished this case from People v. Wharton, where the identification was considered an ordinary and proper completion of an integral police procedure because the viewing by the officer occurred at a place and time sufficiently connected and contemporaneous to the arrest. Here, the 26-day gap, the officer’s mistake about the address, and the suggestiveness of viewing the defendant in handcuffs all pointed to the need for a Wade hearing. The court stated, “(c)omprehensive analysis, not superficial categorization, ultimately governs.” The Court noted that testimony regarding the August 7th identification was only permissible if it directly related back to the original transaction of July 12th and that showup evidence should be avoided and subjected to Wade hearings to safeguard accuracy.

  • People v. Montgomery, 88 N.Y.2d 923 (1996): Admissibility of Confirmatory Identifications Without a “Drive-By”

    People v. Montgomery, 88 N.Y.2d 923 (1996)

    A police station identification by an experienced undercover officer shortly after a drug purchase from the defendant can be admissible as a confirmatory identification, even without a prior “drive-by” identification, if the circumstances ensure the reliability of the identification.

    Summary

    The New York Court of Appeals affirmed the admissibility of a station house identification as confirmatory, even without a “drive-by,” because the identification occurred shortly after the undercover officer’s second face-to-face drug transaction with the defendant. An undercover officer bought cocaine from the defendant in an apartment, secured a search warrant, bought cocaine again a week later, and the backup team arrested the defendant. The officer identified the defendant at the station house through a one-way mirror less than five hours after the second purchase. The Court held that the prompt identification following the drug purchase was a proper completion of police procedure, ensuring reliability despite the absence of a drive-by identification.

    Facts

    An experienced undercover officer purchased a gram of cocaine from the defendant inside a Manhattan apartment.

    Based on this purchase, a search warrant was obtained for the premises.

    One week later, the same undercover officer returned to the apartment and bought another gram of cocaine from the defendant.

    Immediately after leaving the building, the officer radioed his backup team that the “buy had gone down.”

    The backup team arrived at the apartment within five minutes to execute the warrant and arrested the defendant and other occupants.

    The undercover officer was not present during the search or arrest.

    Later that evening, the undercover officer identified the defendant through a one-way mirror at the station house, less than five hours after the second drug purchase.

    Procedural History

    The hearing court ruled the station house identification admissible as a confirmatory procedure.

    The Appellate Division affirmed this ruling.

    The case was appealed to the New York Court of Appeals.

    Issue(s)

    Whether a police station identification can be considered a confirmatory identification and thus admissible when there was no prior “drive-by” identification to confirm that the correct individual was apprehended?

    Holding

    No, not necessarily. The absence of a “drive-by” does not automatically preclude an identification from being considered confirmatory because other circumstances can provide sufficient assurance of reliability.

    Court’s Reasoning

    The Court of Appeals agreed with the lower courts, finding the identification admissible. The court reasoned that the station house identification, occurring only hours after the officer’s second face-to-face transaction with the defendant, constituted “the ordinary and proper completion of an integral police procedure.” The Court declined to impose a per se requirement of a “drive-by” identification for police identifications to be considered confirmatory. It emphasized that courts must be vigilant in assuring the reliability of identifications that have not been shown to be free of suggestive taint. While a “drive-by” is one way to ensure reliability, it is not the only way. The Court highlighted that the search warrant was executed only minutes after the undercover officer left the apartment, which substantially reduced the risk that the wrong person would be taken into custody and the risk of a later misidentification.

    The Court acknowledged prior cases such as People v. Wharton and People v. Morales, where “drive-bys” were present. However, it clarified that those cases did not establish a rigid requirement. The key factor is the reliability of the identification, and that can be established through various means. As the court stated, the officer’s identification “constitute[d] the ordinary and proper completion of an integral police procedure.”