Felipe O., Matter of
| Decision Date | 28 August 1978 |
| Citation | 96 Misc.2d 401,409 N.Y.S.2d 178 |
| Parties | In the Matter of FELIPE O. and Eugene J., persons alleged to be Juvenile Delinquents. |
| Court | New York City Court |
The major question of law on this motion to suppress identification testimony in a juvenile delinquency proceeding, is whether a lineup identification is invalid because of factors that tended to make the suspect conspicuous in the lineup and attract the viewer's attention to him.
The respondents were charged in juvenile delinquency proceedings with acts that would constitute, if done by an adult, second degree murder, in that the 13-year old respondent, aided by the 15-year old, killed another youth, one Hugh M, by shooting him in the head. On respondents' motions a pre-trial hearing was held as to the lineup identifications of both respondents by the eye-witness to the alleged murder. 1 At that hearing petitioner rested after eliciting testimony from the detective who had arranged the lineups. Respondents then requested the production by the district attorney of the eyewitness, one Peter M. (age 15), for them to use as their witness. 2
The district attorney opposed this application on the grounds that it circumvented the prosecution's right to control its own case and the appearance of its eyewitnesses on a pre-trial motion (see People v. Sutton, 47 A.D.2d 455, 459, 366 N.Y.S.2d 500, 504), and also that respondents first must make an offer of proof as to Peter's expected testimony. The court however held that respondents had a right to attempt to elicit evidence as to the suggestiveness of the line-up from the person on whom such suggestiveness would operate that is, the eyewitness who viewed the line-up. Further, an offer of proof could not be required with regard to an adverse witness' testimony. It was also ruled, during Peter's examination, that respondents could treat him as a hostile witness. Compare People v. Robinson, 37 A.D.2d 944, 325 N.Y.S.2d 760.
After an extended hearing, this court holds that respondents' numerous legal points must be rejected. Respondents failed to carry their burden of proof 3 that Peter M.'s lineup identifications were tainted by " unnecessarily suggestive" or by "impermissible and improper" police procedures. (Stovall v. Denno, 388 U.S. 293, 301-21, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Ballot, 20 N.Y.2d 600, 606, 286 N.Y.S.2d 1, 233 N.E.2d 103). The identifications are therefore admissible at trial (see CPL 60.25, 60.30); and it is unnecessary to decide whether, if tainted, the identifications would nonetheless be admissible because reliable (see Manson v. Brathwaite, 432 U.S. 98, 106-7, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140), nor whether despite a taint there was clear and convincing evidence of independent sources for an in-court identification (People v. Rahming, 26 N.Y.2d 411, 417, 311 N.Y.S.2d 292, 297, 259 N.E.2d 727, 732.)
Relying on the photograph taken immediately prior to the lineup, Felipe O.'s attorney argues that he is carrying his number-sign higher than are the stand-ins, and also that according to Peter's testimony, Felipe had a cigarette stuck behind his ear. (While the pre-lineup photograph does not show anything behind Felipe's ear, there is testimony that the detective told him directly before the lineup that he could not smoke.)
The crucial point is the absence of any evidence or indication that the police had any responsibility for either circumstance respondent stresses.
The precedents establish that an identification is tainted when there has been "improper conduct on the part of law enforcement officials" that might influence the identification. People v. Logan, 25 N.Y.2d 184, 193, 303 N.Y.S.2d 353, 360, 250 N.E.2d 454, 458, cert. den. 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513. See also Manson v. Brathwaite, 432 U.S. 98, 111-112, 97 S.Ct. 2243, 53 L.Ed.2d 140; Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402; People v. Rahming, 26 N.Y.2d 411, 416, 311 N.Y.S.2d 292, 296, 259 N.E.2d 727, 731. If the suspect himself is responsible for a questionable factor the identification is not deemed tainted. See People v. Casscles, 51 A.D.2d 623, 624, 378 N.Y.S.2d 813, 816, where the court declared that "the line-up could not be considered unnecessarily suggestive since it was the petitioner himself (the defendant at trial) who selected" the stand-ins. Indeed, this rule prevails even if there is a suggestive factor connecting the suspect with the perpetrator. See Coleman v. Alabama, 399 U.S. 1, 6, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387, where the stand-ins were bareheaded and the suspect (the defendant) wore a hat as had a perpetrator; the lineup was held untainted because "nothing in the record shows that he was required to do so" (wear a hat in the lineup). See also United States v. Medina, 552 F.2d 181, 190 (C.A.7, 1977), where the criminal had worn denim pants and defendant wore such pants in the lineup; the lineup was held untainted because "nothing in the record demonstrates that defendant was required to wear denim pants during the lineup".
In the instant case not only were the police uninvolved in respondent's carriage of his sign and cigarette, but these objects were not, as in the above cases, associated with the perpetrator. Here the viewer's observation of the cigarette (and possibly of the higher number-sign) were like that in Logan, where the court said that "the observation was a mere happenstance unoccasioned by law enforcement officials, and did not lead in all the circumstances to the danger of mistaken identification". (25 N.Y.2d at p. 193, 303 N.Y.S.2d at p. 360, 250 N.E.2d at p. 458.) On all the evidence, the Court finds that even if Peter's attention was attracted to Felipe by the...
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