85 N.Y.2d 877 (1995)

Showing a witness a photograph of a prior lineup identification to prepare them for trial testimony does not constitute a new identification procedure requiring notice under CPL 710.30.

Summary

William Herner was convicted of robbery. Before trial, the victim identified him in a lineup, and the prosecution properly notified the defense. However, the prosecutor showed the victim a photograph of the lineup prior to her testimony as trial preparation. The defendant argued this violated CPL 710.30 because no notice was given for this subsequent viewing. The Court of Appeals held that showing the victim a photo of the lineup for trial preparation wasn’t an identification procedure that triggered the notice requirement under CPL 710.30, thus affirming the lower court’s decision to admit the identification testimony.

Facts

The defendant was charged with robbery. The victim identified the defendant in a pre-trial lineup. The prosecutor disclosed the lineup identification to the defense as required. Prior to trial testimony, the prosecutor showed the victim a photograph of the lineup she had previously identified the defendant in to prepare her testimony. The victim viewed the photograph again on the morning of her trial testimony. During the trial, it was revealed that the victim had been shown the lineup photo the night before her testimony. The defendant moved to suppress the identification testimony.

Procedural History

The County Court denied the defendant’s motion to suppress the identification testimony. The defendant was subsequently convicted of robbery in the first and second degrees after a jury trial. The Appellate Division affirmed the conviction, holding that showing the photograph was merely trial preparation. The New York Court of Appeals granted leave to appeal.

Issue(s)

Whether showing a witness a photograph of a prior lineup identification, for the purpose of preparing the witness’s testimony, constitutes an “identification procedure” requiring notice to the defendant under CPL 710.30.

Holding

No, because the prosecutor’s action of showing the victim a photograph of the lineup was clearly preparation for trial and not a new identification procedure under CPL 710.30.

Court’s Reasoning

The Court reasoned that the prosecutor’s showing the victim a photo of the lineup was merely trial preparation. The court emphasized that the initial lineup identification, for which proper notice was given, was the actual identification procedure. Showing the photograph was intended to refresh the witness’s memory and prepare them for trial, not to elicit a new identification. The Court held that CPL 710.30 is designed to provide notice of actual identification procedures, not preparatory steps taken by the prosecution. To require notice for every instance a witness is shown a photo of a prior identification would unduly burden trial preparation without providing additional protection against suggestive identification procedures. The court thus distinguished between an identification procedure and legitimate trial preparation, finding the latter does not trigger the notice requirement of CPL 710.30.