People v. Santiago

• Decision Date: 20 October 2011
• Citation: 2011 N.Y. Slip Op. 07303,958 N.E.2d 874,934 N.Y.S.2d 746,17 N.Y.3d 661
• Parties: The PEOPLE of the State of New York, Respondent, v. Edwin SANTIAGO, Appellant.
• Court: New York Court of Appeals Court of Appeals

17 N.Y.3d 661
2011 N.Y. Slip Op. 07303
934 N.Y.S.2d 746
958 N.E.2d 874

The PEOPLE of the State of New York, Respondent,
v.
Edwin SANTIAGO, Appellant.

Court of Appeals of New York.

Oct. 20, 2011.

[934 N.Y.S.2d 748]

Legal Aid Society, Criminal Appeals Bureau, New York City (Jeffrey I. Dellheim and Steven Banks of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Patrick J. Hynes and Alan Gadlin of counsel), for respondent.

[934 N.Y.S.2d 749]

[17 N.Y.3d 664] [958 N.E.2d 877] OPINION OF THE COURT PIGOTT, J.

In this case, turning on the accuracy of eyewitnesses' recognition of an assailant's partially concealed face, we consider whether two additional eyewitness identifications sufficiently corroborated the victim's identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary. We conclude that they did not, and that it was error to exclude much of the proposed testimony.

I.

In the early morning of January 10, 2003, a woman waiting for a train at a Manhattan subway station was attacked by a stranger. She had noticed the man when, after they made eye contact on the platform, he stepped behind a pillar before approaching her. When he was an arm's length away from her, the man asked whether she was “working.” When she inquired what he meant, he asked if she was an escort. After she looked away and said “No,” the man began assaulting her. She closed her eyes while raising her hands to protect herself. She could not tell whether her assailant had a weapon. After about 10 seconds, the attack stopped, and the assailant fled.

The victim was assisted by workers at the station, who, along with the police, searched fruitlessly for the assailant. An ambulance transported her to a hospital where she was treated. At the hospital, the victim gave detectives a description of her attacker, a Hispanic male, late 20s or early 30s, five feet, eight inches to five feet, nine inches tall, with a mustache and a goatee. To one detective, the victim described her assailant's “brown[/]yellow mustache.”

The man was wearing a winter jacket, a hooded sweatshirt or “hoodie,” jeans, and a “winter hat.” The jacket, hoodie and hat together covered the assailant's head in such a way that his face was concealed “[f]rom the middle of his top lip, down, and from the top of his eyebrows up.” The victim could not see her assailant's hair, except for his eyebrows and mustache. On the day after the attack, the victim was interviewed by a police artist who created a sketch of the perpetrator.

Police detectives visited the subway station in search of eyewitnesses. Edwin Rios, who had seen the assault, described [17 N.Y.3d 665] the assailant as a Hispanic male in his mid to late 20s, with a goatee, wearing a hood. The assailant had passed Rios after the attack, carrying a knife. Later, police located another witness, Pablo Alarcon, who had noticed the assailant beforehand because the man's facial expression made Alarcon nervous. After the attack, Alarcon saw the assailant put a knife away as he fled. Alarcon also described the perpetrator as a Hispanic male with a goatee. Police officers showed Rios a copy of the [958 N.E.2d 878] artist's sketch of the perpetrator; Rios thought it was “ [m]ore or less” accurate.

On January 19, 2003, a plainclothes police officer patrolling a subway station in Brooklyn noticed a man in a winter jacket, jeans and winter cap selling Metrocard “swipes.” Later, the officer saw the same man engaged in the same activity at the next stop. The officer arrested the man, defendant Edwin Santiago, and his photograph made its way to the detective squad investigating the January 10 attack.

An array comprising photographs of six men and including defendant's arrest photograph was shown to Alarcon on January 22. He claimed not to recognize defendant or any of the other men in the array. The victim viewed the photographic array on January 24. She testified that, when she saw the photograph of Santiago, it felt as if her “heart stopped and [she] got really scared and [ ] said that that was him.”

[934 N.Y.S.2d 750]

Santiago, who had been released, was rearrested the following day, at a shelter for the homeless. A photograph taken after the second arrest shows Santiago with a dark mustache and goatee. He was 30 years old and five feet, five inches in height.

On January 26, the victim identified Santiago in a six-person lineup. According to the victim, when she saw defendant, she felt “really scared”—it was, once again, as if her “heart stopped” and she “knew it was him.” On the same day, Alarcon viewed the lineup. As he later explained at defendant's suppression hearing and trial, he recognized defendant as the perpetrator of the attack with an “eighty percent” feeling of confidence in his identification, but, because he was concerned about his immigration status, he told the police that he did not recognize anyone. The following day, Alarcon saw a photograph of Santiago in handcuffs, accompanied by police officers, in a Spanish-language newspaper; the article made it clear that Santiago had been identified by the victim of the subway attack and arrested.

Santiago was indicted by a grand jury on a first-degree assault charge on February 6, 2003.

[17 N.Y.3d 666] II.

No physical evidence linked defendant to the assault. As it appeared at the time of the indictment, the People's case would be built entirely on the victim's identification. Attempting to secure expert testimony from Professor Steven Penrod on the psychological factors affecting the accuracy of eyewitness identification, Santiago filed a motion in limine on June 26. The People countered by arguing, among other things, that much of the proposed expert testimony was within the common understanding of jurors, or inapplicable to the facts of the case.

Supreme Court granted defendant's motion to the extent of ordering a Frye hearing ( see Frye v. United States, 293 F. 1013 [D.C.Cir.1923] ), to determine whether the principles Professor Penrod proposed to describe in his testimony had gained general acceptance in their scientific fields. During subsequent motion practice, defendant gave provisional summaries of Penrod's expected testimony. He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition— exposure time (the amount of time available for viewing a perpetrator affects the witness's ability to identify the perpetrator); cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians); weapon focus (a victim's focus on the weapon used in an [958 N.E.2d 879] assault can affect ability to observe and remember the attacker); lineup fairness (similarity of fillers to the suspect increases identification accuracy); lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification); forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time); postevent information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later); wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded); unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts); simultaneous versus sequential lineups (witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups); eyewitness confidence

[934 N.Y.S.2d 751]

issues (an eyewitness's confidence level is not a good predictor of eyewitness accuracy, but eyewitness [17 N.Y.3d 667] confidence is the major determinant in whether an identification is believed by jurors), and confidence malleability (eyewitnesses' confidence levels can be influenced by factors unrelated to identification accuracy).

After defendant's case was transferred to a different Supreme Court Justice, defendant renewed his motion to admit expert testimony. On December 19, 2003, Supreme Court denied defendant's motion, without holding a Frye hearing. While noting that there was “no corroboration of the victim's identification,” Supreme Court nonetheless ruled that the case was not “an appropriate one for an expert identification witness” (2 Misc.3d 652, 653, 769 N.Y.S.2d 874 [Sup. Ct., N.Y. County 2003] ). Supreme Court found that the case did not involve a cross-racial identification as contemplated by the psychological literature, and that weapon focus was not relevant because the victim was not aware of any weapon. Supreme Court further reasoned that testimony about how lineup instructions can influence an identification would be inappropriate, because the victim here “must have realized that the person whose photograph she selected would be in the lineup” ( id. at 654, 769 N.Y.S.2d 874). The court rejected expert testimony on postevent information, the forgetting curve, the wording of questions, and eyewitness confidence issues (including confidence malleability), on the ground that “by helping to create the sketch and approving its final version, the victim went on the record, for better or worse, about the facial features of her attacker long before any of those...