New York Law Review

Tag: Criminal Procedure Law 60.25

  • People v. Quevas, 81 N.Y.2d 70 (1993): Admissibility of Prior Identification Testimony When Witness Refuses to Identify Due to Fear

    People v. Quevas, 81 N.Y.2d 70 (1993)

    Third-party testimony recounting a witness’s pretrial identification of the defendant is inadmissible under CPL 60.25 when the witness refuses to make an in-court identification due to fear, as the statute requires the witness to be unable to identify the defendant based on present recollection.

    Summary

    Abraham Rodriguez was robbed and identified two of his assailants to police shortly after the incident. However, at a pretrial hearing and subsequent trial, Rodriguez refused to identify the defendants in court, stating he feared for his life. The trial court allowed the police officers to testify about Rodriguez’s prior identification, and the defendants were convicted. The New York Court of Appeals reversed, holding that CPL 60.25 does not permit third-party testimony of a prior identification when the witness’s refusal to identify is based on fear, not an inability to recall.

    Facts

    Abraham Rodriguez was robbed by a group of men after leaving a bar. He reported the robbery to the police and, while in a patrol car, identified two men on the street as his assailants. The police arrested the two men. Rodriguez stated that a third man who was with them was not involved. At the time of arrest, one defendant had $70, and the other had no cash.

    Procedural History

    At a pretrial Wade hearing, Rodriguez refused to identify the defendants, citing fear for his safety. The trial court denied the defendant’s motion to preclude the police officer’s testimony regarding the prior identification. The defendants were convicted of first-degree robbery. The Appellate Division affirmed the convictions, finding the officers’ testimony admissible due to Rodriguez’s fear. A dissenting judge believed the fear was an improper basis for admitting the testimony. The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether, under CPL 60.25, an eyewitness’s refusal to identify defendants because of fear allows the admission of third-party testimony of an identification made by him at the time of arrest.

    Holding

    No, because CPL 60.25 requires that the witness be unable to make an identification “on the basis of present recollection,” and the witness’s fear indicates a present ability to identify, not an inability to recall.

    Court’s Reasoning

    The court emphasized that third-party testimony of a prior identification is generally inadmissible. CPL 60.25 provides a specific exception, allowing such testimony only when the witness is “unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question.” The court reasoned that Rodriguez’s refusal to identify the defendants stemmed from fear, demonstrating that he was, in fact, able to recognize them. The court stated that “By his repeated refusals to identify defendants because of fear of retribution, Rodriguez manifested not an inability to identify these defendants — a neutral fact — but the converse.” The court distinguished this situation from cases where the witness’s inability to identify the defendant resulted from a lapse of time or a change in appearance, which would properly invoke CPL 60.25. The court explicitly declined to extend the application of CPL 60.25 to situations where fear prevents identification, as this would contradict the statute’s clear language requiring an inability to identify based on present recollection.

  • People v. Whalen, 369 N.Y.S.2d 393 (1975): Admissibility of Prior Identification When Witness Cannot Make In-Court Identification

    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.