People v. Abney
| Decision Date | 05 May 2011 |
| Docket Number | 3314/05 |
| Parties | The People of the State of New York, v. Quentin Abney, Defendant. |
| Court | New York Supreme Court |
Appearing on behalf of the defendant: Kathleen Hardy, Staff Attorney The Legal Aid Society
Appearing on behalf of the People: Shanda Strain, Assistant District Attorney
The defendant was convicted, after a jury trial, of placing a six inch knife to the throat of a thirteen year old girl and then ripping the chain off her neck.1 The victim was the only eyewitness to the crime, which lasted only seconds. No other evidence, aside from the victim's later identification, connected the defendant to the crime. The defendant's principal contention on appeal was that the now retired trial judge abused his discretion by denying his application to elicit expert testimony with respect to the reliability of eyewitness identifications without first holding a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). On October 14, 2008, the defendant's conviction was affirmed by a divided panel of the Appellate Division, First Department. See People v. Abney, 57 AD3d 35 (1st Dept. 2008). On October 27, 2009, the New York Court of Appeals unanimously reversed the defendant's conviction and ordered a new trial. See People v. Abney, 13 NY3d 251 (2009). A new trial was ordered as the trial judge abused his discretion by denying, without first holding a Frye hearing, the defendant's application to call an eyewitness identification expert to testify in the areas of "event stress, exposure time,event violence weapon focus, and cross-racial identification."2 See People v. Abney, 13 NY3d at 268.
Pursuant to the ruling in People v. Abney, 13 NY3d at 268, this Court conducted a Frye hearing on September 17, 2010, September 20, 2010, November 12, 2010, and November 22, 2010. The purpose of the hearing was to determine whether the defendant would be permitted to introduce at trial expert testimony on the reliability of eyewitness identification with respect to event stress, event violence, weapon focus, exposure time and cross-racial identification.3 The defendant called Dr. Nancy Franklin and the People called Dr. Barry Cooper. This Court finds both credible. At the conclusion of the hearing each party submitted lengthy motion papers, reply memoranda, and voluminous scientific studies related to the testimony elicited at the Frye hearing. For the reasons that follow, the defendant's motion to elicit eyewitness expert testimony at trial is granted in part and denied in part.
The facts underlying the alleged crime in this case were set forth by the Court of Appeals in People v. Abney, 13 NY3d at 257-258.
On June 2, 2005 at about 3:20 P.M., 13-year-old Farhana U., on her way home from school, was descending well-lit stairs into the subway station near the corner of Essex and Delancey Streets in Manhattan when a man whom she did not know approached her and asked for “some change.” This man stood face-to-face with Farhana, about two feet away. She initially did not think he intended to harm her and was not afraid. Looking him squarely in the face, she said she had no change.
After Farhana “took a couple of steps forward,” the stranger wheeled in front of her, placed a knife with a six-inch blade and “a big curve on the end” near her throat, and asked her “a couple of times” to hand over her necklace, a gold chain with a locket. As this man stood close by her, Farhana was “looking at his face”; she was “really scared” and “didn't know what to do.” When Farhana refused his demand, screaming “No,” he ripped the chain off her neck, and fled up the stairs. This entire encounter was fleeting.
Farhana continued down the stairs into the subway station and reported the robbery to a token clerk. At about 4:30 P.M., Detective Samuel DeJesus interviewed her at his desk in the transit station house at Columbus Circle. According to Detective DeJesus, Farhana seemed frightened; she told him that she had been robbed at knife-point by a stranger, a black man in histhirties who was over six feet tall, had “pinkish” lips, and wore a short-sleeved blue shirt and a blue bandana.
Farhana's physical description of the robber and how he carried out the crime prompted Detective DeJesus to suspect defendant Quentin Abney: he was familiar with defendant on account of his arrest for an earlier subway-related robbery. Telling Farhana that he would be “right back,” the detective left his desk to put together an array of six photographs, including defendant's. When he returned, he told Farhana that he “was going to show her a group of photos and, if she recognized anyone, to let [him] know which one and what number.” Pointing out defendant's photograph, she responded, “that's him, number six.”
On June 22, 2005, Detective Ernest Dorvil telephoned Farhana at her home to ask her to view a lineup. Upon arrival at the station house, she waited in an office with the door shut while the lineup was being put together. From the office, Farhana could not see defendant, who was in a “cell area” on the other side of the building, or any of the “fillers” selected to participate in the lineup. Once the lineup was assembled, Detective Dorvil escorted Farhana to the viewing room, where they were joined by another police officer and defendant's attorney. She identified defendant, in position number four (there were six men in the lineup); Farhana was “sure” that he was the man who had asked her for change and then robbed her at knife-point.
Defendant was arrested and charged with one count of robbery in the first degree (Penal Law § 160.15[3]). At the subsequent jury trial, Farhana testified on direct examination that the man who robbed her had a dark brown complexion, “puppy dog eyes,” and “pinkish-purplish lips”; she did not remember whether he was wearing anything over his head, but thought his shirt was blue. Defense counsel cross-examined Detective DeJesus about the details of Farhana's initial description of the robber; Detective Dorvil about the lineup, eliciting testimony that he let Farhana know ahead of time that a suspect was included (which she contradicted, saying that the detective told her only that he wanted her to view “a couple of people”); and Farhana about the lineup and the appearance of the knife.
People v. Abney, 13 NY3d at 257-258.
Prior to jury selection the defendant filed a motion in limine to present expert testimony with respect to fifteen different factors related to the reliability of eyewitness identification.4 Id. at 259. The trial judge denied the motion with leave to renew at the conclusion of the People's direct case.
The trial judge observed that while he was aware that the People's case hinged on the eyewitness testimony of the 13-year-old victim “[a]t this [juncture], ... [the trial judge], in the exercise of discretion, [did] not consider [the] case an appropriate one for an expert identification witness” for several reasons.
The trial judge reasoned that “[a]s a threshold matter,” defendant's papers did not “appropriately narrow the scope of the expert's proposed testimony,” which therefore threatened to turn into “a full-fledged seminar ... which could lead to hours of academic discussion and speculation.” Second, the proffered testimony about how police investigative techniques might influence a lineup identification was not relevant because the victim had previously picked out a photograph from an array, and so must have realized that a suspect would be included in the lineup. Third, two of the proposed subjects of testimony-postevent information and unconscious transference-“[had] not passed the Frye test” in other courts.5 Fourth, evidence about simultaneous versus sequential lineups was “unmanageable in a trial setting,” because juries were “not experts on constitutional law and procedure and [could not] be educated about those topics during a trial.”
Finally, the trial judge commented that “jurors know that, as a matter of common sense, a person's memory does fade as time passes.” In his view, “[m]any” of defendant's concerns relative to the accuracy of Farhana's eyewitness identification could be adequately addressed by tailoring cross-examination and the jury charge. He indicated that defendant was “free to renew his motion at the close of the People's case, at which time he [should] narrow his proffer to the specific topics that he believes are relevant to the facts of this case.”
At the conclusion of the People's case the defendant renewed his motion and sought to present expert eyewitness identification testimony with respect to a narrower range of topics. In particular, the defendant sought to elicit expert testimony in the areas of "event stress, exposure time, event violence and weapon focus, cross-racial identification, and lineup instructions, in addition to a new topic, double blind lineups." Id. at 260. The defendant also took exception to the trial judge's earlier ruling that the area of "witness confidence" could be addressed through the use of jury instructions. Id.
The trial judge denied defendant's renewed motion on the ground that "having had the benefit of the witness's testimony," there was "nothing unique about [the] case . . . present[ing] issues that are beyond the ken of the ordinary juror." In his view, the relevant issues had been explored adequately during cross-examination, and could be argued in summation and covered in the jury charge.
The Appellate Division, in a 3-2 decision, affirmed the defendant's conviction. People v. Abney, 57 AD3d 35 (1st Dept. 2008).As a threshold matter the Appellate Division observed that the "unusual fact pattern presented in LeGrand," which involved an identification made seven years after the crime and a retrial that took place 11 years...
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