New York Law Review

Tag: People v. Gee

  • People v. Gee, 8 N.Y.3d 861 (2007): Notice Requirements for Pretrial Identifications

    People v. Gee, 8 N.Y.3d 861 (2007)

    Under CPL 710.30(1)(b), the prosecution is only required to provide notice of pretrial identification evidence that it intends to offer at trial; because photographic identifications are generally inadmissible in the prosecution’s case-in-chief, notice of such identifications is not required.

    Summary

    The New York Court of Appeals held that the prosecution was not required to provide notice of a pretrial photographic identification of the defendant because such evidence is generally inadmissible in the prosecution’s case-in-chief. The victim identified the defendant from a photographic array and later in a street point-out. The prosecution only provided notice of the street point-out. The Court reasoned that CPL 710.30(1)(b) only mandates notice of pretrial identification evidence “intended to be offered” at trial. Because photographic identifications are generally inadmissible as direct evidence, the prosecution had no intention to offer it and thus, no notice was required.

    Facts

    On February 4, 2003, the victim was robbed at gunpoint in a coffee shop in Brooklyn. Later that day, the police showed the victim two photographic arrays, one of which contained a picture of the defendant taken after a prior arrest. The victim identified the defendant as the robber with the gun. One week later, on February 11, 2003, the victim saw the defendant on the street and called the police, identifying him as one of the robbers. The defendant was immediately arrested.

    Procedural History

    The defendant was arraigned on March 26, 2003. The People served notice of the February 11, 2003 street point-out. The defense learned of the photographic identification during pretrial discovery and moved to preclude the in- and out-of-court identifications due to lack of notice. Supreme Court denied the motion. The defendant was convicted of robbery in the first degree on March 2, 2004, and sentenced on May 27, 2004. The Appellate Division affirmed the judgment, finding the prosecution discharged its statutory obligation to provide notice. The New York Court of Appeals affirmed.

    Issue(s)

    Whether CPL 710.30(1)(b) requires the prosecution to provide notice of a pretrial photographic identification of the defendant when the prosecution only intends to offer evidence of a subsequent in-person identification at trial.

    Holding

    No, because CPL 710.30(1)(b) only mandates preclusion in the absence of timely notice “specifying” the pretrial identification evidence “intended to be offered” at trial, and evidence of a witness’s pretrial photographic identification of an accused is not admissible in the prosecution’s case-in-chief.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 710.30(1)(b) requires notice only of pretrial identification evidence that the prosecution intends to offer at trial. The court noted that evidence of a witness’s pretrial photographic identification is generally inadmissible in the prosecution’s case-in-chief, citing People v Cioffi, 1 NY2d 70 (1956) and People v Caserta, 19 NY2d 18 (1966). Therefore, since the People could not intend to offer the photographic identification at trial, the notice provided was adequate.

    The court acknowledged that while providing notice of photographic arrays would be good policy, it was unwilling to read the statute more broadly than the Legislature had written it, especially when the remedy is preclusion. The court emphasized that it had never before been asked this specific question, belying any notion that it was upending the common understanding of the law.

  • 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. Gee, 99 N.Y.2d 158 (2002): CPL 710.30 Notice Not Required for Witness Viewing Video of Crime

    People v. Gee, 99 N.Y.2d 158 (2002)

    A witness’s viewing of a surveillance videotape depicting the actual crime, as opposed to a lineup, showup, or photo array, does not constitute a “previous identification” requiring notice under CPL 710.30(1) because it doesn’t present the risk of undue suggestiveness that the statute aims to prevent.

    Summary

    The New York Court of Appeals held that a convenience store clerk’s viewing of a surveillance video of the robbery shortly after it occurred did not trigger the notice requirements of CPL 710.30. The court reasoned that showing the clerk the video of the robbery she witnessed was not an identification procedure because the clerk was simply ratifying the events as revealed in the videotape, and no issue or inquiry as to the defendant’s identity was made. The purpose of CPL 710.30 is to protect against suggestive pretrial identification procedures that could lead to misidentification; because the video depicted the actual crime, there was no risk of such suggestiveness. This ruling clarifies the scope of CPL 710.30 and its application to situations where a witness views a recording of the crime itself.

    Facts

    Defendant Gee and an accomplice robbed a convenience store. The robbery was recorded by the store’s surveillance camera. The clerk, shortly after the robbery, viewed the surveillance videotape and confirmed its authenticity to Officer Buduson. The People provided notice under CPL 710.30 regarding a lineup and photographic identification, but not the videotape viewing.

    Procedural History

    Defendant was indicted for robbery. At trial, the defense learned of the clerk’s videotape viewing and moved to preclude the clerk’s identification testimony due to lack of CPL 710.30 notice. The trial court denied the motion, allowing cross-examination on the viewing. The jury convicted the defendant. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the convenience store clerk’s viewing of the surveillance videotape, depicting the robbery she witnessed, constituted a “previous identification” of the defendant as contemplated by CPL 710.30(1), thus requiring the prosecution to provide notice to the defense.

    Holding

    No, because the clerk’s viewing of the videotape depicting the actual robbery did not constitute a “previous identification” within the meaning of CPL 710.30(1), as it did not present the risk of undue suggestiveness that the statute is designed to prevent.

    Court’s Reasoning

    The Court reasoned that CPL 710.30 aims to protect against suggestive pretrial identification procedures that could lead to misidentification. The statute requires notice when a witness will testify about observing the defendant “either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such” (CPL 710.30 [1]). The court emphasized that in viewing the videotape, the clerk did not “previously identify the defendant as such,” meaning as the defendant in the case. Because the videotape depicted the actual robbery and the only people shown were the clerk and the robbers, there was no selection process or risk of suggestiveness. The clerk was simply ratifying the events on the tape. The court distinguished this from lineups, showups, and photo arrays, where the defendant’s identity is at issue and suggestiveness is a concern. As the Court stated, “In cases in which the defendant’s identity is not in issue, * * * ‘suggestiveness’ is not a concern and, hence, [CPL 710.30] does not come into play” (citing People v. Gissendanner, 48 N.Y.2d 543, 552 (1979)). The Court also noted that a Wade hearing would have been “all but purposeless” because the only way to argue suggestibility would be to call the clerk as a witness, which a defendant does not have an absolute right to do. The Court also cited Simmons v. United States, 390 U.S. 377 (1968), contrasting that viewing a clear image of the robber on video shortly after the robbery does not constitute an “undue” or improper suggestion of what he looked like.