James H., In re

• Decision Date: 12 June 1974
• Parties: , 316 N.E.2d 334 In the Matter of JAMES H. (Anonymous), Appellant. City of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 48

359 N.Y.S.2d 48

34 N.Y.2d 814, 316 N.E.2d 334

In the Matter of JAMES H. (Anonymous), Appellant City of New York, Respondent.

Court of Appeals of New York.

June 12, 1974.

Robert A. Naidus, William E. Hellerstein, New York City, Charles Schinitsky and Martin Guggenheim, Brooklyn, for appellant.

Adrian P. Burke, Corp. Counsel, New York City (Mark D. Lefkowitz, Brooklyn, Milton H. Harris and Ellen Kramer Sawyer, New York City, of counsel), for respondent.

MEMORANDUM.

Case remitted to the Family Court for a post-dispositional hearing as herein indicated. Final determination of this appeal held in abeyance, pending the outcome of such hearing.

The complainant, victim of the robbery, testified that she had never seen her assailant before and saw him for a moment or two at the time of the commission of the crime. The other witness who came to her rescue, had the robber under observation for a longer period before he escaped. A few weeks after the robbery, while appellant was in custody and when a lineup would have been feasible, a police officer displayed photographs only of appellant to the key witnesses. This fact was not known to defense counsel until after the fact-finding hearing. At the hearing, the witnesses testified that the first time either had seen appellant after the robbery was in court at the hearing. Neither mentioned, nor was information elicited, that a photograph, or photographs, only of this appellant had been shown to them prior to the fact-finding hearing.

Prior to the dispositional hearing, a motion was made by defense counsel for a new hearing on the ground of his recent discovery that prehearing photographic identifications had been made and not mentioned on interrogation. The motion was denied. It may be noted that, at the hearing, appellant testified at some length and denied committing the crime.

When photographs are shown to a witness, there is always present the danger of an incorrect identification. The danger is increased when a single photograph is exhibited which tends to emphasize the person portrayed as the person sought. A claim of prejudice by a defendant 'is a claim which must be evaluated in light of the totality of surrounding circumstances.' (Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247.)

Under the circumstances, defense counsel should have been permitted the Voir dire he sought in order to explore whether the procedure used as to the photographs was so unfair or unduly suggestive as to affect the later in-court identification (s...