People v. Brewster, 63 N.Y.2d 419 (1984)
An indictment is not dismissable solely because a complaining witness identified the defendant before the Grand Jury without disclosing that the initial identification was based on photographs.
Summary
Defendants Brewster and Alfonso were indicted for robbery, burglary, and firearm offenses. A complaining witness testified before the Grand Jury that she identified the defendant without mentioning that the identification was made from photographs. The defense moved to dismiss the indictment, arguing that the Grand Jury proceeding was defective. The Court of Appeals held that the indictment was valid because the identification testimony presented to the Grand Jury, absent any information about the photographic identification, established a prima facie case. The court emphasized that the Grand Jury proceeding is not an adversary proceeding and the identification testimony was not hearsay because the Grand Jury was not informed of the photographic identification.
Facts
Two defendants, Brewster and Alfonso, were indicted along with others for robbery, burglary, and related firearm charges. Before the Grand Jury, a complaining witness testified that she identified Brewster, and another witness testified she identified Alfonso. Neither witness revealed that their identifications were made from photographs. The People served notice of intent to present testimony at trial from witnesses who had previously identified the defendants from photographs. During a Wade hearing, it was revealed that the Grand Jury testimony was based on photographic identifications, and each witness made a corporeal identification of the defendant during the hearing.
Procedural History
The defendants moved to dismiss the indictment based on insufficient evidence and defects in the Grand Jury proceedings, and a Wade hearing was ordered. During the Wade hearing, the defendants filed a supplementary motion to dismiss the indictment pursuant to CPL 210.35 (subd 5). The hearing judge granted the motion, finding the indictment based on incompetent evidence but allowed in-court identification based on an independent source. The Appellate Division reversed and reinstated the indictment, deeming CPL 60.30 inapplicable to Grand Jury proceedings. The Court of Appeals affirmed, albeit with different reasoning.
Issue(s)
Whether an indictment should be dismissed under CPL 210.35 (subd 5) when a complaining witness testifies before the Grand Jury that she identified the defendant, without disclosing that the identification was initially made from photographs.
Holding
No, because the identification testimony before the Grand Jury established a prima facie case that, if unexplained, would warrant a conviction.
Court’s Reasoning
The Court of Appeals reasoned that a Grand Jury proceeding is not an adversary proceeding, except for the limited rights granted to a defendant to testify and request witnesses. The purpose of an indictment is to bring a defendant to trial upon a prima facie case that, if unexplained, would warrant a conviction. The identification testimony before the Grand Jury served that purpose. The court emphasized that the identification testimony was not hearsay because the Grand Jury was not presented with information about how or when the identification was made. The Grand Jury was only informed that the witness identified a defendant as her assailant, which constituted a present statement of the fact that she recalled the defendant as the person who assaulted her. The court noted that withholding the information about the photographic identification avoided unfairness to the defendant by preventing the Grand Jury from inferring a prior arrest record. The court stated, “The identification testimony before the Grand Jury satisfied that purpose.” (quoting People v. Oakley, 28 NY2d 309, 312). The court found no infringement of CPL 60.30, which concerns the admissibility of prior identification evidence at trial, because the Grand Jury was not presented with any evidence concerning the photographic identification. The court distinguished the case from situations where a witness identifies a photograph of the perpetrator and a custodian testifies to the name of the person in the photograph, which is permissible.