New York Law Review

Tag: Independent Source

  • People v. Wilson, 4 N.Y.3d 777 (2005): Independent Basis Required for In-Court Identification After Suggestive Lineup

    4 N.Y.3d 777 (2005)

    When a pretrial lineup identification is deemed unduly suggestive, an in-court identification by the same witness is inadmissible unless the prosecution establishes an independent basis for the in-court identification, untainted by the suggestive lineup.

    Summary

    Wilson was convicted based on an eyewitness identification. The eyewitness identified Wilson in a lineup shortly after viewing Wilson’s photograph shown to him by a police officer. Wilson moved to suppress the lineup and any in-court identification. The trial court denied the motion, finding the lineup was not tainted. The appellate court reversed, finding the lineup unduly suggestive. However, the appellate court upheld the conviction, concluding there was an independent basis for the in-court identification. The Court of Appeals reversed, holding that the trial court had not actually made a finding of an independent basis, and remanded for a hearing on whether such a basis existed.

    Facts

    An eyewitness identified Wilson in a pretrial lineup.
    Prior to the lineup, a police officer showed the eyewitness a photograph of Wilson.
    Wilson moved to suppress the lineup identification and any potential in-court identification.
    The trial court denied the motion, finding the lineup untainted by the photo viewing.

    Procedural History

    The trial court convicted Wilson.
    The Appellate Division reversed the trial court’s finding that the lineup was not unduly suggestive but affirmed the conviction, stating that the trial court correctly found an independent basis for the in-court identification.
    Wilson appealed to the New York Court of Appeals.

    Issue(s)

    Whether an in-court identification is admissible when the pretrial lineup identification is deemed unduly suggestive and the trial court has not made an explicit finding regarding an independent source for the in-court identification.

    Holding

    No, because the trial court did not take the additional step of determining whether an independent source existed for the eyewitness’s in-court identification, the Appellate Division erred in concluding the trial court had “correctly found” that the eyewitness had an independent source for his in-court identification testimony.

    Court’s Reasoning

    The Court of Appeals reasoned that because the trial court never explicitly determined whether an independent source existed for the in-court identification, the Appellate Division erred in concluding that the trial court had “correctly found” such a basis.
    The Court emphasized that the Appellate Division could make a de novo independent source determination based on evidence from the suppression hearing but that the inquiry in this case was too truncated to allow for such a determination. The Court noted, “Because Supreme Court never took the additional step of determining whether an independent source existed for the eyewitness’s in-court identification, Supreme Court cannot be said to have ruled “correctly” when it never ruled at all.”
    The Court reiterated the importance of the prosecution presenting independent source evidence at a Wade hearing to avoid the risk of completely renewed proceedings, quoting People v. Burts, 78 N.Y.2d 20, 25 (1991) that, in light of the “risk for completely renewed proceedings” whenever a pretrial identification is challenged, the People are generally well-advised to come forward with any independent source evidence at a
    Wade hearing so that the suppression court may, where appropriate, rule in the alternative.
    This demonstrates a practical consideration for prosecutors to present all available evidence during the initial suppression hearing.
    The remedy was to reverse the conviction and remand the case to the Supreme Court for an independent source hearing prior to retrial.

  • People v. Williams, 85 N.Y.2d 868 (1995): Admissibility of In-Court Identification After Single-Photo Identification

    85 N.Y.2d 868 (1995)

    A police officer’s brief viewing of a single photograph of the defendant after a buy-and-bust operation is not a confirmatory identification, but an independent source for in-court identification can be established even without corroborative testimony from backup officers if other factors support the reliability of the identification.

    Summary

    This case addresses the admissibility of an in-court identification by an undercover officer after the officer viewed a single photograph of the defendant following a buy-and-bust operation. The New York Court of Appeals affirmed the Appellate Division’s order, holding that the single-photo viewing was not a mere confirmatory identification. The court also found that the defendant failed to properly preserve the argument that the People needed corroborative testimony from backup officers to establish an independent source for the in-court identification. The court held that the duration of the officer’s observation was only one factor in determining the reliability of the independent source.

    Facts

    An undercover officer participated in a buy-and-bust operation. Two days later, the same officer viewed a single photograph of the defendant. The defendant was subsequently prosecuted, and the officer made an in-court identification. The defendant argued that the single-photo identification tainted the in-court identification.

    Procedural History

    The trial court held a hearing and determined that an independent source existed for the officer’s in-court identification. The Appellate Division affirmed, finding the single-photo viewing was not a mere confirmatory identification and the in-court identification was admissible. The defendant appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether an undercover officer’s viewing of a single photograph of the defendant two days after a buy-and-bust operation constitutes a mere confirmatory identification?
    2. Whether the People can establish an independent source for an in-court identification in the absence of corroborative testimony from backup officers regarding the initial observation?
    3. Whether the brevity of the officer’s initial viewing of the defendant is sufficient to preclude a finding of an independent source for the in-court identification?

    Holding

    1. No, because the Appellate Division correctly found, and the People conceded, that the viewing was not a mere confirmatory identification.
    2. No, because the defendant failed to properly preserve this argument for appeal.
    3. No, because duration is only one of several factors considered when determining the reliability of an independent source, and the lower court’s undisturbed finding was supported by the record.

    Court’s Reasoning

    The Court of Appeals agreed with the Appellate Division that the single-photo viewing was not a mere confirmatory identification. The court emphasized that the defendant failed to properly preserve the argument that corroborative testimony from backup officers was necessary to establish an independent source. Because this argument was not raised at the hearing, it could not be considered on appeal.

    Regarding the brevity of the officer’s observation, the court reasoned that the duration of the opportunity to observe was only one of several factors considered by the lower court. The court deferred to the lower court’s undisturbed finding, supported by the record, that the identification was reliable. This finding was therefore beyond the Court of Appeals’ review. The court effectively stated that the totality of the circumstances surrounding the initial observation, not merely its length, determines the reliability of the independent source.

    This case is significant because it clarifies that a single-photo viewing by a police officer is not automatically deemed a confirmatory identification. It also highlights the importance of properly preserving arguments at the trial level for appellate review. Furthermore, it emphasizes that the reliability of an independent source for an in-court identification depends on a variety of factors, not just the duration of the initial observation. A key takeaway is that defense attorneys must challenge the totality of the circumstances surrounding an identification, while prosecutors can argue that even brief encounters can form a reliable basis for later identification.

  • People v. Edmonson, 84 N.Y.2d 950 (1994): Admissibility of Identification Testimony After Suggestive Showup

    People v. Edmonson, 84 N.Y.2d 950 (1994)

    When a witness has participated in a suggestive showup, their subsequent physical description of the perpetrator is inadmissible unless the prosecution proves the description is untainted by the showup, but this error can be deemed harmless if other evidence corroborates the witness’s testimony.

    Summary

    The New York Court of Appeals considered the admissibility of a complainant’s physical description of a robber after a suggestive showup. The complainant, robbed at knifepoint, later identified the defendant at the police station. The trial court suppressed the showup and in-court identifications but allowed the complainant to describe the robber. The Court of Appeals affirmed the Appellate Division’s order, holding that while the physical description should not have been admitted without proof it was untainted by the showup, the error was harmless because other evidence corroborated the complainant’s testimony, including her identification of the knife and the cloth wrapped around the robber’s hand.

    Facts

    The complainant was robbed at knifepoint in an elevator.
    A neighbor saw a man resembling the defendant fleeing the building with cloth wrapped around his hand.
    Police stopped the defendant nearby in connection with another crime; he also had cloth wrapped around his hand.
    Complainant’s husband identified the defendant to the police as the robber, leading to a search that revealed the complainant’s jewelry and a knife on the defendant.
    The complainant identified the defendant as the robber at the police station.

    Procedural History

    The trial court suppressed both the showup identification and the in-court identification due to the suggestive nature of the showup and the lack of an independent source for the in-court identification.
    Despite the suppression, the trial court allowed the complainant to provide a physical description of the robber.
    The Appellate Division affirmed the trial court’s judgment of conviction.
    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the complainant’s physical description of the robber, given after a suggestive showup, was admissible at trial when there was no finding that the description was untainted by the showup.
    Whether the admission of the physical description, if erroneous, constituted harmless error.

    Holding

    No, because there was no finding that such description, given for the first time after the showup, was untainted.
    Yes, because other evidence corroborated the complainant’s testimony, rendering the error harmless.

    Court’s Reasoning

    The Court relied on People v. Moss, 80 NY2d 857, which established that a physical description given after a suggestive showup is inadmissible unless the prosecution demonstrates that the description is untainted by the showup.
    The Court acknowledged that admitting the complainant’s physical description of the robber was an error, stating, “while it was improper for complainant to give a physical description of the robber — there having been no finding that such description, given for the first time after the showup, was untainted”.
    However, the Court applied the harmless error doctrine from People v. Crimmins, 36 NY2d 230, 241, finding that the error did not contribute to the conviction because the complainant’s detailed description and identification of the knife, as well as the fact that cloth was wrapped around her assailant’s hand, were corroborated by other evidence. The Court noted that the complainant testified to details she could not have gleaned from the showup.
    The Court concluded that the properly admitted evidence overwhelmingly established the defendant’s guilt, rendering the error harmless. Defendant’s version of events (colliding with a lookalike while jogging who dropped the knife and jewelry) was not deemed credible in light of the other evidence.

  • People v. Smalls, 74 N.Y.2d 746 (1989): Right to Counsel at Lineup and Independent Source for Identification

    74 N.Y.2d 746 (1989)

    A defendant has a right to counsel at a lineup when a removal order has been issued to secure the defendant’s attendance, and in the absence of a hearing to determine independent source, in-court identification testimony from witnesses exposed to an uncounseled lineup is inadmissible.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s order and ordered a new trial because the defendant’s right to counsel was violated during pretrial lineups. The lineups occurred without counsel present despite a removal order securing the defendant’s attendance. The Court of Appeals held that the admission of the lineup evidence was not harmless error because the key issue at trial was identification, and the in-court identifications of the witnesses who attended the lineup were tainted. The court also addressed errors related to the testimony of an informant witness.

    Facts

    The defendant was convicted of robbery and other charges. The People’s case rested significantly on eyewitness identifications. Two witnesses identified the defendant at lineups conducted without the presence of counsel, despite a removal order in place to ensure the defendant’s attendance. Another witness was a police informant who testified in exchange for a reduced sentence on an unrelated charge.

    Procedural History

    The defendant was convicted at trial. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal and then reversed the Appellate Division’s order, remanding the case for a new trial.

    Issue(s)

    1. Whether the lineup testimony of the two witnesses should have been suppressed due to the absence of counsel during the lineups, given that a removal order was issued to secure the defendant’s attendance.

    2. Whether the erroneous admission of the lineup evidence was harmless beyond a reasonable doubt.

    3. Whether the in-court identification testimony of the witnesses who attended the uncounseled lineups was admissible without a hearing to determine if the testimony had an independent source.

    4. Whether the trial court erred in instructing the jury regarding the informant-witness’s testimony.

    Holding

    1. Yes, because a removal order had been issued to secure defendant’s attendance at the pretrial identification procedures, defendant had a right to the presence of counsel during the lineups.

    2. No, because the only significant issue at defendant’s trial was identification, and the People’s strongest evidence came from the two eyewitnesses who had been exposed to the uncounseled lineups.

    3. No, because in the absence of a hearing to determine whether that testimony had an independent source, it cannot be assumed that that testimony was not also tainted and subject to exclusion.

    4. Yes, because the court should have instructed the jury to scrutinize the informant’s testimony carefully and determine whether any benefit he received affected the truthfulness of that testimony, and the court’s erroneous instruction created an imbalance.

    Court’s Reasoning

    The court reasoned that because a removal order was issued to secure the defendant’s attendance at the lineups, the defendant had a right to counsel under People v. Coleman, 43 NY2d 222. Since the defendant did not waive that right, the lineups conducted without counsel violated the defendant’s constitutional rights.

    The court found that the error was not harmless beyond a reasonable doubt, as required by People v. Crimmins, 36 NY2d 230, 237, because identification was the only significant issue at trial. Two of the four witnesses connecting the defendant to the crime were subject to serious impeachment, and the other two eyewitnesses had been exposed to the uncounseled lineups.

    The court emphasized that the in-court identification testimony of the witnesses who viewed the lineup was inadmissible without a hearing to determine whether the testimony had an independent source, citing United States v. Wade, 388 US 218, 240-241; People v. Coates, 74 NY2d 244; and People v. Dodt, 61 NY2d 408. The court noted, “in the absence of a hearing to determine whether that testimony had an independent source, it cannot be assumed that that testimony was not also tainted and subject to exclusion.” This underscored the importance of establishing that the in-court identification was based on the witness’s independent recollection of the crime and not influenced by the tainted lineup.

    Regarding the informant-witness, the court found that the trial court erred by not instructing the jury to carefully scrutinize the informant’s testimony for truthfulness, given the benefits he received. The court stated that “the informant’s testimony should be scrutinized carefully and a determination made as to whether any benefit he received affected the truthfulness of that testimony.” The court also noted the error in instructing the jury that the informant’s criminal past could be considered only insofar as it implicated his general credibility, thereby ruling out consideration of the more specific possibilities of bias and motive to falsify, citing People v. Bell, 38 NY2d 116, 123.

  • People v. Adams, 68 N.Y.2d 677 (1986): Admissibility of In-Court Identification Despite Suggestive Lineup

    People v. Adams, 68 N.Y.2d 677 (1986)

    An unduly suggestive pretrial lineup identification does not automatically preclude an in-court identification if the in-court identification is based on an independent source and the error in admitting the tainted lineup identification is harmless beyond a reasonable doubt due to overwhelming evidence of guilt.

    Summary

    Defendant was convicted of robbery. At trial, one complaining witness testified to a pretrial corporeal lineup identification. The Supreme Court found the lineup permissible, but the Court of Appeals disagreed, finding it unduly suggestive because the defendant was the only person wearing clothing matching the description of the perpetrator’s clothing. Despite this, the Court of Appeals affirmed the conviction, holding that the in-court identifications by both complainants were based on an independent source and that the error in admitting the tainted lineup identification was harmless beyond a reasonable doubt due to overwhelming evidence of the defendant’s guilt.

    Facts

    Two complainants observed the defendant’s face during a gunpoint robbery that lasted 2 to 2 1/2 minutes.

    At a pretrial lineup, the defendant was the only person wearing a tan vest and a blue snorkel jacket, which matched the description of the clothing worn by the perpetrator.

    One of the complaining witnesses testified to this pretrial lineup identification at trial.

    Procedural History

    The Supreme Court found the in-court identifications were based on an independent source and that the lineup procedure was permissible.

    The Appellate Division affirmed the Supreme Court’s decision without disturbing these findings.

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

    Issue(s)

    1. Whether the pretrial lineup was unduly suggestive, thus making the witness’s pretrial lineup identification inadmissible.

    2. Whether, despite the suggestiveness of the lineup, the in-court identifications were admissible because they were based on an independent source.

    3. Whether the error in receiving the tainted lineup identification was harmless beyond a reasonable doubt.

    Holding

    1. Yes, because the defendant was conspicuously displayed in the lineup as the only person wearing clothing that matched the description of the perpetrator’s clothing.

    2. Yes, because the complainants had ample opportunity to observe the defendant during the robbery, providing an independent source for their in-court identifications.

    3. Yes, because there was overwhelming evidence of the defendant’s guilt, including the properly admitted in-court identifications by the two eyewitnesses.

    Court’s Reasoning

    The Court of Appeals found the lineup unduly suggestive, stating that the defendant was “conspicuously displayed in that lineup” because he was the only person wearing the distinctive clothing that fit the description of the clothing allegedly worn by the perpetrator. This violated the principle that lineups should not be arranged in a way that singles out the suspect. The Court cited People v. Adams, 53 NY2d 241, 248, for the standard of undue suggestiveness.

    However, the Court emphasized that the in-court identifications were admissible because they had an independent source. This means the witnesses’ ability to identify the defendant in court stemmed from their observations during the robbery itself, not from the suggestive lineup. The Court noted the undisturbed finding that both complainants observed the defendant’s face during a gun-point robbery which lasted 2 to 2 Vi minutes.

    Finally, the Court applied the harmless error doctrine, finding that the error in admitting the tainted lineup identification was harmless beyond a reasonable doubt. Citing People v. Crimmins, 36 NY2d 230, 237, the Court reasoned that the overwhelming evidence of the defendant’s guilt, specifically the properly admitted in-court identifications, made the error insignificant. The Court focused on the strength of the untainted evidence to conclude that the suggestive lineup did not contribute to the conviction. This demonstrates a practical application of balancing fairness in identification procedures with the need for efficient criminal justice administration.

  • People v. Whisby, 48 N.Y.2d 834 (1979): Admissibility of In-Court Identification and Speedy Trial Rights

    People v. Whisby, 48 N.Y.2d 834 (1979)

    An in-court identification is admissible if it is based on an independent source of recollection or if no police identification procedure took place, and a claim of denial of a speedy trial must be raised at trial to be preserved for appellate review.

    Summary

    Defendants Whisby and Price appealed their convictions, arguing that they were denied a speedy trial and that the in-court identification by the victim should have been suppressed. The New York Court of Appeals affirmed the lower court’s decision, holding that the speedy trial issue was not preserved for review because it was not raised at trial. The Court also found that the in-court identification of Price was based on an independent source and that no police identification procedure occurred with respect to Whisby, making the identification admissible. The Court found no merit in the defendants’ remaining contentions.

    Facts

    The victim identified Price in court. Prior to trial, the victim identified Whisby on a public street in White Plains without any police involvement. The defendants were convicted, and on appeal, they argued that their right to a speedy trial had been violated and that the in-court identification by the victim should have been suppressed.

    Procedural History

    The trial court convicted the defendants. The defendants appealed to the Appellate Division, which affirmed the convictions. The defendants then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendants’ contention that they were denied their right to a speedy trial may be considered on appeal when the issue was not raised at trial.

    2. Whether the in-court identification of defendant Price by the victim ought to have been suppressed.

    3. Whether the in-court identification of defendant Whisby by the victim ought to have been suppressed.

    Holding

    1. No, because defendants failed to raise the issue at trial.

    2. No, because the in-court identification was based upon an independent source of recollection.

    3. No, because the complaining witness identified Whisby on a public street, and no police identification procedures took place.

    Court’s Reasoning

    The Court of Appeals held that a claim of denial of a speedy trial must be raised at trial to be preserved for appellate review, citing People v. Primmer and People v. Adams. The Court stated that it could not consider the defendants’ speedy trial claim because they failed to raise it at trial.

    Regarding Price’s in-court identification, the Court found that there was evidence in the record to support the trial court’s factual finding, affirmed by the Appellate Division, that the identification was based upon an independent source of recollection. The Court emphasized that it cannot disturb such findings of fact, citing People v. Burrows and People v. Peterson.

    As for Whisby’s in-court identification, the Court relied on the affirmed finding of fact that he was identified by the complaining witness on a public street and that “there were no police identification procedures necessary and none, in fact, took place.” The court cited People v. Logan, noting that under such circumstances, the identification was proper. The Court suggested that the lack of police involvement distinguished this case from situations involving potentially suggestive police identification procedures.

    The Court summarily dismissed the defendants’ remaining contentions, finding them to be without merit.

  • People v. Travison, 46 N.Y.2d 758 (1978): Harmless Error in Identification Testimony

    46 N.Y.2d 758 (1978)

    An appellate court’s error in upholding the denial of a pretrial suppression motion regarding identification testimony can be deemed harmless if the issue of identity was not contested at trial and the defense strategy was not affected by the denial.

    Summary

    Travison was convicted of sexual assault. Prior to trial, he moved to suppress the complainant’s in-court identification, arguing that pretrial photo and lineup procedures were unduly suggestive. The suppression court denied the motion. The Appellate Division affirmed, holding that even if the pretrial procedures were illegal, the complainant had an independent source for her identification. The Court of Appeals affirmed, finding any error in the Appellate Division’s disposition of the suppression issue harmless, as identity was not an issue at trial. Travison conceded he was with the complainant, but offered a different version of events. The court emphasized that the defense strategy was not impacted by the denial of the suppression motion.

    Facts

    The defendant, Travison, was accused of sexual assault. Before trial, the defense challenged the admissibility of the complainant’s in-court identification, arguing it was tainted by impermissibly suggestive pretrial photo identification and lineup procedures. At trial, Travison admitted to spending considerable time with the complainant but presented a different account of their interaction, effectively conceding his presence at the scene but disputing the nature of the encounter.

    Procedural History

    The trial court denied Travison’s motion to suppress the in-court identification. On appeal, the Appellate Division affirmed, offering an alternative rationale: even assuming the pretrial identification procedures were improper, the complainant had an independent source for her identification. Travison appealed to the New York Court of Appeals, arguing the Appellate Division erred in relying on independent source when that evidence was only presented at trial, not at the suppression hearing.

    Issue(s)

    Whether the Appellate Division’s error in upholding the denial of a pretrial suppression motion regarding in-court identification testimony, based on an “independent source” argument not presented at the suppression hearing, can be considered harmless error when the defendant conceded being with the complainant and the defense strategy was not affected by the suppression ruling.

    Holding

    Yes, because at trial, the question of identity was not put in issue by the defendant. He conceded that he had spent an extended time with the complainant, but offered an entirely different description of what had occurred during their encounter. Therefore, any error in the disposition of the suppression issue was harmless beyond a reasonable doubt.

    Court’s Reasoning

    The Court of Appeals determined that any error made by the Appellate Division in addressing the suppression motion was harmless. The court highlighted that the core issue at trial was not the identity of the perpetrator, as Travison admitted being with the complainant. Instead, the defense focused on contesting the complainant’s version of the events, presenting an alternative narrative. The court emphasized that the defense strategy was not altered or influenced by the denial of the suppression motion. Because the defendant admitted he was with the complainant, the validity of the in-court identification was not material to the outcome of the trial. The court stated, “In this circumstance, when there is no suggestion that defense strategy on the trial was in any way affected by the denial of suppression, appellant may not now be heard to complain of errors with respect to the denial of his motion to suppress the complainant’s in-court identification testimony.”

  • People v. Rodriguez, 40 N.Y.2d 834 (1976): Admissibility of In-Court Identification After Suggestive Pre-Trial Confrontation

    People v. Rodriguez, 40 N.Y.2d 834 (1976)

    An in-court identification is admissible if it is based on an independent source and not tainted by a suggestive pre-trial identification procedure.

    Summary

    The New York Court of Appeals affirmed the admission of in-court identifications of the defendant, Rodriguez, by two witnesses. The Court held that one witness’s identification had an independent source, untainted by any suggestive station house identification. The court also determined the other witness’s in-court identification was based on her own independent recollection, despite a suggestive confrontation during the suppression hearing. The Court emphasized the trial judge’s opportunity to observe the witness and the lack of contemporaneous objection to the in-court identification procedure.

    Facts

    The defendant, Rodriguez, was accused of burglary. Witness Carmen Jiminez had ample opportunity to observe the defendant during the burglary. Both Carmen and Norma Jiminez identified the defendant in court as the perpetrator.

    Procedural History

    The trial court admitted the in-court identifications of the defendant. The Appellate Division affirmed this decision. The defendant appealed to the New York Court of Appeals, arguing that the in-court identifications were tainted by suggestive pre-trial identification procedures.

    Issue(s)

    1. Whether the in-court identification by witness Carmen Jiminez was tainted by a suggestive identification at the station house, thereby rendering it inadmissible.

    2. Whether the in-court identification by witness Norma Jiminez was tainted by a suggestive confrontation during the identification suppression hearing, thereby rendering it inadmissible.

    Holding

    1. No, because the witness had ample opportunity to observe the defendant at the time of the burglary, providing an independent source for her in-court identification.

    2. No, because the hearing judge found that her identification was the product of her own independent recollection and was not tainted by any improper confrontation; this finding was affirmed by the Appellate Division.

    Court’s Reasoning

    The Court of Appeals relied on the finding that Carmen Jiminez had “ample opportunity to observe the defendant at the time of the burglary,” thus establishing an independent source for her in-court identification. This independent source negated any potential taint from the suggestive station house identification.

    Regarding Norma Jiminez’s identification, the Court deferred to the hearing judge’s finding that her identification stemmed from her independent recollection, not from the suggestive confrontation during the suppression hearing. The Court also noted the lack of contemporaneous objection to the in-court identification procedure when it occurred, suggesting defense counsel did not perceive it as unduly suggestive at the time. The court implicitly highlighted the importance of the trial judge’s ability to assess the witness’s credibility firsthand.

    The Court distinguished this case from *People v Bell, 38 NY2d 116* regarding the defendant’s claim about the trial judge improperly marshaling the evidence and rejected that claim.

  • People v. Whitmore, 28 N.Y.2d 826 (1971): Admissibility of Identification Testimony After Suggestive Showup

    People v. Whitmore, 28 N.Y.2d 826 (1971)

    Where a pretrial identification procedure is suggestive, the prosecution must prove by clear and convincing evidence that the in-court identification is based on independent recollection and not influenced by the prior suggestive procedure.

    Summary

    This case addresses the admissibility of an in-court identification following a potentially suggestive showup. Whitmore was convicted of attempted rape and robbery. The key issue was the reliability of the victim’s identification, especially considering a prior showup where Whitmore was presented to the victim without a lineup after being implicated in other high-profile crimes to which he confessed (confessions later proven false). The New York Court of Appeals affirmed the conviction, finding that the prosecution had demonstrated that the victim’s in-court identification was based on her independent recollection of the event, untainted by the suggestive showup. The dissent argued that the suggestive showup and the subsequent retraction of his other confessions undermined the reliability of the identification.

    Facts

    On April 23, 1964, a woman was attacked and nearly raped on a street in Kings County. A police officer witnessed part of the assault but the assailant fled. The officer initially described the suspect as a Black male, 5’8″-5’9″, 165 lbs, wearing a tan coat. The victim described her assailant as a light-skinned Black male, 5’7″, 135 lbs, pockmarked, and wearing a tan coat. The next day, the officer saw Whitmore, who fit parts of the description, in a laundromat. Whitmore gave a false name and employment. He was later arrested and shown to the victim, who identified him. Whitmore then confessed to this crime, and also to two other infamous rape-murders. He was later exonerated of the other crimes after his confessions were proven false.

    Procedural History

    Whitmore was convicted in the trial court. An earlier appeal led to a post-trial identification hearing to determine if the victim’s in-court identification was tainted by the showup. The Appellate Division held the appeal in abeyance pending the outcome of the hearing. The trial court determined the identification was untainted. The Appellate Division then affirmed the conviction, and the case was appealed to the New York Court of Appeals.

    Issue(s)

    Whether the victim’s in-court identification of Whitmore was admissible, given the potentially suggestive nature of the pre-trial showup, and the later retraction of Whitmore’s confessions to other crimes?

    Holding

    Yes, because the prosecution demonstrated by clear and convincing evidence that the victim’s in-court identification was based on her independent recollection of the crime, untainted by the suggestive showup.

    Court’s Reasoning

    The Court of Appeals acknowledged the potential for suggestiveness in the showup procedure. However, the Court emphasized that the hearing court found the victim’s trial testimony on identification was untainted by the showup or any other improper suggestion. The court applied the rule that when a pretrial identification is potentially tainted, the prosecution must prove by clear and convincing evidence that the in-court identification has an independent source. The court deferred to the trial court’s finding that the prosecution met this burden. The dissent strongly disagreed, arguing that the conflicting descriptions, the false confessions, and the suggestive showup made the identification unreliable, stating “The positiveness of the Borrero identification is no better than the positiveness of the untrustworthy confessions. The positiveness in each instance is undermined or belied by ineradicable and contradictory facts of record and history.” The dissent highlighted the danger of relying on a witness’s positive identification when that identification might have been influenced by external factors, especially in light of the fact that Whitmore had falsely confessed to other crimes. The dissent further stated that the proof on the hearing must be “clear and convincing ”, that is, the proof must establish by clear and convincing evidence that the pretrial impropriety did not influence the in-court identification.

  • People v. Ganci, 27 N.Y.2d 418 (1971): Admissibility of In-Court Identification After Pretrial Identification

    People v. Ganci, 27 N.Y.2d 418 (1971)

    An in-court identification is admissible if the prosecution establishes by clear and convincing evidence that the witness’s ability to recognize the defendant is based on an independent source and is not tainted by an earlier suggestive pretrial identification procedure, but the admissibility of prior photographic identification, when elicited by the defendant, is not preserved for review.

    Summary

    The New York Court of Appeals addressed the admissibility of an in-court identification following a pretrial identification. The court held that the in-court identification was permissible because the trial court correctly determined, after a voir dire, that the witness’s identification ability was independent of potentially suggestive pretrial procedures (photographic display and a showup). Additionally, the court declined to address the admissibility of prior photographic identification since the defense counsel initially elicited that information during cross-examination, failing to preserve the issue for appeal.

    Facts

    The complaining witness identified the defendant in court. Prior to trial, the witness had identified the defendant through photographs shown by the police and in a showup in the courthouse corridor.

    Procedural History

    The trial judge conducted a voir dire to determine the admissibility of the in-court identification. The trial court found the in-court identification admissible. The defendant appealed, arguing that the in-court identification was tainted by the prior photographic display and showup. The defendant also argued that the fact that the witness had previously identified the defendant through photographs was improperly brought before the jury.

    Issue(s)

    1. Whether the in-court identification was admissible, considering the witness had previously identified the defendant through photographs and a showup?

    2. Whether the admission of evidence regarding the witness’s prior photographic identification of the defendant is grounds for reversal when that evidence was first elicited by the defendant’s counsel?

    Holding

    1. No, because the record clearly and convincingly supports the trial court’s finding that the witness’s ability to recognize the defendant was not the product of, or affected by, the prior photographic display or the showup.

    2. No, because the question of its admissibility against the defendant has not been preserved for appellate review since this fact was first elicited by the defendant’s own counsel upon cross-examination.

    Court’s Reasoning

    The Court of Appeals affirmed the trial court’s decision, emphasizing that the trial judge had properly conducted a voir dire to assess the basis of the witness’s in-court identification. The court found that the evidence clearly and convincingly supported the determination that the in-court identification was based on an independent source, untainted by the pretrial identification procedures. Citing People v. Ballott, the court reiterated the importance of determining whether the witness’s recognition of the defendant stemmed from an independent recollection. As the Court stated, the record supported the finding that the witness’s ability to recognize the defendant was not the product of, or affected by, either the photographs she saw or by the showup. Regarding the photographic identification, the court noted that since defense counsel first elicited the information about the witness identifying the defendant through photographs, the defendant could not later claim it as grounds for reversal. The court declined to reconsider its prior holdings on this matter, noting that the issue had not been properly preserved for review. The court effectively applied the invited error doctrine, preventing a party from raising an issue on appeal that they themselves introduced at trial.