People Of The State Of N.Y. v. Perkins
Decision Date | 29 June 2010 |
Citation | 15 N.Y.3d 200,906 N.Y.S.2d 523,932 N.E.2d 879 |
Parties | The PEOPLE of the State of New York, Respondent, v. Nayshawn PERKINS, Appellant. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Joshua M. Levine, New York City, and Lynn W.L. Fahey for appellant.
Charles J. Hynes, District Attorney, Brooklyn (Victor Barall and Leonard Joblove of counsel), for respondent.
On October 31, 2002, four men carried out an armed robbery at a clothing store in Brooklyn, during which one of the robbers shot a store employee in the head and chest. The victim survived. Acting on information that defendant Nayshawn Perkins might have been involved in the robbery, the police created a photographic array of six pictures, including his, and showed the array to the victim four days after the crime; the victim immediately recognized defendant as “the guy that shot me.”
On February 3, 2003, about three months after the crime, defendant was arrested. The victim was summoned to the police station the next day to view a lineup. When the detective tried to organize it, however, defendant balked: he insisted that he was not going to participate; he kicked and spat and cursed at the detective, and refused to sit still and face forward, holding a lineup number. As a result of defendant's obstreperousness, it was impossible to carry out the lineup, but the detective managed to take defendant's photograph (a Polaroid head shot) by persuading him that his picture was required for a “prisoner movement slip.” The detective also took head shots of the five men who were to have served as fillers in the lineup, and laid out the six photographs in a row on a table for the victim to look at. The victim pointed out defendant's photograph, identifying him as his assailant. On July 21, 2003, 5 1/2 months after the aborted lineup and almost nine months after the crime, the victim selected defendant again, this time in a court-ordered, double-blind lineup.
Following a Wade hearing, Supreme Court held that the pre-trial identification procedures undertaken by the police were not unduly suggestive, and therefore denied defendant's motion to suppress the victim's lineup identification of defendant in July of 2003, and to preclude his prospective in-court identification testimony. While the prosecutor also maintained that she should be permitted to introduce at trial evidence of the victim's photographic identification of defendant in February of 2003 as well as the precipitating circumstances, the hearing court declined to rule on these issues in deference to the trial judge.
Before jury selection at defendant's trial in May of 2005, the prosecutor renewed her request to present to the jury the victim's photographic identification of defendant on February 4, 2003, as well as evidence as to why the police were unable to conduct a lineup that day. * The prosecutor argued that because defendant obstructed the corporeal lineup, he should not be heard to complain about the admission of the victim's identification made after viewing the photographs taken of him and the fillers. The prosecutor further contended that defendant's behavior thwarting the lineup was admissible as evidence of consciousness of guilt.
The trial judge ruled that the victim's photographic identification of defendant in February of 2003 was admissible, remarking that When defense counsel objected on the ground that the People were not prejudiced by defendant's conduct because of the victim's eventual lineup identification of him, the judge disagreed. She explained that
The next day, defense counsel renewed his opposition to admission of the photographic identification. He reiterated that the People were not prejudiced, and also protested that counsel was not present at the station house in February of 2003. He acknowledged, however, that if he cross-examined anyone about the lengthy gap in time between the crime and the lineup in July of 2003, this would open the door to the identification testimony the People sought to introduce. The trial judge again commented, though, that the jury “might wonder how somebody could possibly recognize someone all that time later,” even if not prompted by defense counsel's questioning. Accordingly, the judge adhered to her earlier ruling, adding that
The jury subsequently convicted defendant of second-degree attempted murder (Penal Law §§ 110.00, 125.25) and first-degree robbery (Penal Law § 160.15). On June 14, 2005, the trial judge sentenced defendant as a second felony offender to concurrent terms of 25 and 10 years in prison for attempted murder and robbery respectively. Defendant took an appeal, arguing that the trial judge should not have permitted the People to introduce the evidence of the victim's photographic identification of him in February 2003.
On April 14, 2009, a unanimous Appellate Division affirmed the judgment of conviction and sentence. After noting that defendant had “refused to participate” in the lineup that the police sought to conduct on February 4, 2003, the court observed that
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...might infer that the police possessed a defendant's photograph because of previous run-ins with the law” (People v. Perkins, 15 N.Y.3d 200, 205, 906 N.Y.S.2d 523, 932 N.E.2d 879 [2010] ). However, the witness did not testify to an extrajudicial identification, only that he had participated ......
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Photographs, recordings, & x-rays
...RECORDINGS, X-RAYS 10-7 PHOTOGRAPHS, RECORDINGS, & X-RAYS §10:10 — Criminal cases — photo identification People v. Perkins , 15 N.Y.3d 200, 932 N.Y.S.2d 879 (2010). Victim’s identiication of defendant in a photographic lineup that police composed after defendant refused to participate in c......
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Photographs, recordings & x-rays
...gave a limiting instruction to explain minor variations in road conditions. — Criminal cases — Photo Identification People v. Perkins , 15 N.Y.3d 200, 932 N.Y.S.2d 879 (2010). Victim’s identiication of defendant in a photographic lineup that police composed after defendant refused to parti......
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Photographs, recordings, & x-rays
...gave a limiting instruction to explain minor variations in road conditions. — Criminal cases — photo identification People v. Perkins , 15 N.Y.3d 200, 932 N.Y.S.2d 879 (2010). Victim’s identification of defendant in a photographic lineup that police composed after defendant refused to parti......