Pablo F., Matter of
| Decision Date | 30 March 1979 |
| Citation | 415 N.Y.S.2d 741,98 Misc.2d 919 |
| Parties | In the Matter of PABLO F., A person alleged to be a Juvenile Delinquent. |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York City, by Roger W. Frydrychowski, Asst. Dist. Atty., New York City, of counsel.
Charles Schinitsky, The Legal Aid Society, Brooklyn, by Nanette R. Kripke, New York City, of counsel.
This juvenile delinquency proceeding against a 15-year old boy poses a novel issue with regard to pre-trial identifications. The complainant, a 62-year old retired school teacher, testified that she was stopped in the vestibule of her apartment building by three youths; one youth, standing face-to-face with her, directed her to give him her money and said "now" to a second youth standing to her right; the latter then took a knife from his pants leg and held it at her throat; the third youth stood between the other two.
According to the complainant's further testimony, while she recognized the first two youths with certainty later at the police station, she had been unsure as to a third person exhibited to her, saying only that he was "probably" the third youth. At the trial she was similarly indecisive, testifying merely that respondent "resembled" the third youth.
The assistant district attorney offered to prove through the arresting officer that the complainant had in fact identified respondent, who was the third person exhibited to her at the police station, with certainty. At common law the officer's testimony would be inadmissible because it involves the basic evil of hearsay that the testifier cannot be cross-examined as to the veracity and basis of the statement he reports. The district attorney argues, however, that the officer's testimony is admissible under Criminal Procedure Law § 60.25. Such section provides that when a witness is "unable at the proceeding to state, on the basis of present recollection, whether or not the defendant" was the perpetrator, a third party may testify "that the defendant is in fact the person whom the witness observed and recognized" as the guilty person on some occasion after the alleged crime. In the light of the history and purpose of § 60.25, however, this court concludes that despite the above-quoted language the district attorney's offer of proof must be rejected and the objection of respondent's attorney sustained.
The uncertainty of the victim's identification at trial of the respondent qualifies, in the court's opinion, as a present inability to state whether or not the defendant was the perpetrator within the meaning of CPL § 60.25. Accordingly, pursuant to that section the police officer can give evidence, admissible as evidence in chief, as to the witness' past identification of respondent. The more difficult issue, however, is whether the officer can testify only as to the sameness of respondent and the person the witness previously identified, or can also testify, in accordance with the district attorney's offer of proof, as to the witness' statement of identification.
The district attorney argues that the latter as well as the former type of testimony is admissible under the appellate interpretations of CPL § 60.25. In support of his argument are Court of Appeals' statements that "pursuant to statute (CPL § 60.25), a witness to an identification by another is permitted to give evidence in chief as to the original identification where the 'identifying witness is unable to make an identification at trial.' " (People v. Morales, 37 N.Y.2d 262, 272, 372 N.Y.S.2d 25, 35, 333 N.E.2d 339, 346), and that § 60.25 permits "the fact of the prior identification to be established by the testimony of another person when the "identifying witness is unable to make an identification at trial ". People v. Lagana, 36 N.Y.2d 71, 74, 365 N.Y.S.2d 147, 149, 324 N.E.2d 534, 535). However, it is clear from the recital of evidence in the lower court opinion in Lagana (see 43 A.D.2d 834, 835, 350 N.Y.S.2d 747, 748) that the third person's testimony only supplied the proof that the defendant was the person the witness previously identified. More important, both of these decisions as well as Appellate Division declarations to the same effect are based on the foundation case of People v. Nival, 33 N.Y.2d 391, 353 N.Y.S.2d 409, 308 N.E.2d 883, cert. den. 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208.
In Nival, the complainant-victim was unable to identify the defendant at the trial but she testified that she had identified the perpetrator shortly after the crime. A detective then testified that defendant was the same person the witness had previously identified. Upholding the admissibility of the detective's testimony, the court explained that its purpose was to supply "the necessary logical link between the defendant and the person identified" out-of-court and that the detective's testimony was ...
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