New York Law Review

Tag: Prior Identification

  • People v. Lynn, 75 N.Y.2d 510 (1990): Notice Requirements for Prior Identifications

    People v. Lynn, 75 N.Y.2d 510 (1990)

    CPL 710.30 notice requirements for prior identifications do not apply to judicially supervised identifications, like those in prior trials or Wade hearings, where the defendant is represented by counsel.

    Summary

    Lynn was convicted of robbery. A prior trial ended in a hung jury. On appeal, he argued the prosecution improperly introduced evidence of a prior identification without proper notice under CPL 710.30 and improperly introduced post-arrest statements after initially agreeing not to use them. He also claimed the Appellate Division erred in refusing his request to file a supplemental pro se brief. The Court of Appeals affirmed, holding CPL 710.30 doesn’t apply to in-court identifications and the admission of the statements, while error, was harmless. The Court also held that there is no right to hybrid representation on appeal.

    Facts

    Edgar Berry, 63, was robbed in his apartment building’s vestibule on March 5, 1981. Berry recognized Lynn, who he had seen around the building. Lynn was arrested four days later and denied involvement, claiming “two other guys” committed the robbery. At the first trial, which ended in a mistrial, Berry identified Lynn as the robber. Before the second trial, the People stated their intent to use Lynn’s post-arrest statements, which they initially said they would not use, claiming the statements were voluntary.

    Procedural History

    Lynn and his brother were indicted for robbery. After initial suppression motions regarding post-arrest statements, the prosecution initially stated they would not use the statements at trial. The first trial resulted in a hung jury. Prior to the second trial, the People changed course and indicated they would use Lynn’s statements. The trial court denied a motion to preclude the statements after a Huntley hearing. Lynn was convicted. The Appellate Division affirmed without opinion. Lynn appealed, arguing the introduction of prior identification evidence, the post-arrest statements, and the denial of his request to file a pro se brief were errors.

    Issue(s)

    1. Whether the requirements of CPL 710.30 apply to judicially supervised identifications occurring when the defendant is represented by counsel.

    2. Whether the prosecutor’s initial decision not to introduce Lynn’s statement constituted a stipulation preventing its later use.

    3. Whether the Appellate Division erred in refusing to allow Lynn to file a supplemental pro se brief.

    Holding

    1. No, because the purpose of CPL 710.30 is to provide notice of pretrial identifications that the defendant might not otherwise be aware of, and this concern is not present when the identification occurs in court with counsel present.

    2. Yes, because the prosecutor’s statement constituted a stipulation under CPL 710.60(2)(b); however, the error was harmless beyond a reasonable doubt because the statement was largely exculpatory, and the victim’s identification was strong.

    3. No, because a defendant has no state or federal constitutional right to hybrid representation on appeal.

    Court’s Reasoning

    The Court reasoned that the legislative intent behind CPL 710.30 was to address concerns about suggestive pretrial identification procedures. “CPL 710.30 sets forth a procedure to provide notice to a defendant who might otherwise be unaware that the People are in possession of such evidence and thus allows the defendant to test the reliability of the identification before trial.” However, in prior in-court identifications, the defendant is aware of the identification, and counsel is present to challenge any suggestiveness. A separate hearing would therefore be redundant.

    Regarding the post-arrest statements, the Court found that the prosecutor’s initial statement constituted a stipulation under CPL 710.60(2)(b). A stipulation is “ ‘[a]n agreement, admission, or concession made in a judicial proceeding by the parties thereto or their attorneys, in respect of some matter incident to the proceeding, for the purpose, ordinarily, of avoiding delay, trouble and expense’ ”. However, the error in admitting the statements was deemed harmless because the statements were primarily exculpatory and the victim’s identification was strong.

    Finally, the Court rejected Lynn’s argument that he had a right to file a supplemental pro se brief. The Court stated, “We have previously held that a defendant has no State or Federal constitutional right to such representation at the pretrial and trial levels…”. The Court clarified that its prior decision in People v. Vasquez (70 N.Y.2d 1) addressed the ethical obligations of counsel but did not create a right to hybrid representation. While the Court suggested that appellate courts should generally accept timely pro se briefs, the decision remains within the court’s discretion.

  • 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.