People v. Abney

• Decision Date: 14 October 2008
• Docket Number: 3317.
• Citation: 867 N.Y.S.2d 1,57 A.D.3d 35,2008 NY Slip Op 07757
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. QUENTIN ABNEY, Appellant.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 35

867 N.Y.S.2d 1

2008 NY Slip Op 07757

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. QUENTIN ABNEY, Appellant.

3317.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 14, 2008.

Steven Banks, The Legal Aid Society, New York City (Richard Joselson of counsel), and Shearman & Sterling, New York City (Ashley W. Walker of the District of Columbia bar, admitted pro hac vice, Brian H. Polovoy, Karen S. Hart, Douglas R. Miller of the District of Columbia bar, admitted pro hac vice, and Chloe E. Neil of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Patrick J. Hynes and Mark Dwyer of counsel), for respondent.

OPINION OF THE COURT

FRIEDMAN, J.

Defendant was convicted of robbing a 13-year-old girl at knifepoint based on the victim's eyewitness testimony. Defendant argues that the conviction should be reversed, and the case remanded for a new trial, based on the trial court's refusal to permit the defense to present expert testimony on the reliability of eyewitness identifications. We disagree. Even if the proffered expert testimony was relevant to the reliability of the identification at issue, here there was evidence corroborating that identification. Thus, People v LeGrand (8 NY3d 449 [2007]), which requires the admission of expert testimony on the reliability of eyewitness identification under certain circumstances where "there is little or no corroborating evidence connecting the defendant to the crime" (id. at 452), does not mandate admission of the expert testimony in this case. For this reason, and because defendant's remaining arguments are also without merit, we affirm the judgment of conviction.

On June 2, 2005, at 3:20 P.M., as 13-year-old Farhana U. walked down the well-lit stairway into the subway station at Essex and Delancey Streets, she saw defendant coming up the stairs toward her. When he was about two feet away from her, and she could clearly see his face, he asked her for some change. Farhana, who at that point was not frightened and did not believe that defendant intended to harm her, told defendant that she had no change. Defendant at first continued walking up the stairs, and Farhana took a couple of steps down. Then, defendant suddenly came around in front of her, held a knife close to her neck, and demanded a couple of times, in a harsh voice, that Farhana give him the necklace she was wearing, a gold chain with a heart-shaped locket. Farhana was frightened, and screamed "no" three or four times, but defendant ripped the chain from her neck and fled up the stairs. The robbery lasted a few seconds. Afterwards, Farhana went to the token booth clerk to report it.

Police Detective Samuel DeJesus interviewed Farhana in the presence of her brother. Farhana seemed frightened to DeJesus. She described the person who robbed her as a black male, over six feet tall, with pinkish lips, wearing a blue short-sleeved shirt and a blue bandanna. DeJesus, having worked on the investigation of a robbery committed in the same general area on May 28, recognized a possible connection, and prepared a photographic array that included defendant, who had been arrested for the May 28 robbery.¹ Within an hour of the June 2 robbery, Farhana picked defendant out of the photographic array.

Later that month, on June 22, defendant was located and arrested. Detective Ernest Dorvil phoned Farhana, told her that he had a suspect, and asked her to come to the station to view a lineup. Farhana, upon viewing the lineup, selected defendant as the man who robbed her.

At trial, shortly before jury selection, defendant moved to present expert testimony from Dr. Solomon M. Fulero regarding 15 psychological factors of memory and perception that may affect the accuracy of eyewitness identification. Defendant wanted to have Fulero testify about psychological studies showing that several factors present in this case typically affect the accuracy of an eyewitness identification. Supreme Court denied the motion as premature, but gave defendant leave to renew at the close of the People's direct case "As a threshold matter, the defendant's papers fail to appropriately narrow the scope of the expert's proposed testimony. The defendant suggests that the expert will address three topics: event factors, investigation factors and witness confidence, as outlined on [p]ages 9 and 10 of the motion.

"But, those headings are really a full-fledged seminar on many of the studies and opinions in the field, any one of which could lead to hours of academic discussion and speculation, which would be inappropriate to present to a jury. . . .

"The defendant may be in a better position to narrow the scope of this application at the close of the People's direct case."

The court also pointed out that

"[u]nlike many lineup situations where photographic identification did not occur before a lineup . . . the victim must have realized here [that] the person whose photo she selected in the photo array would be in the lineup. In such a case, testimony [as to] how police investigation factors could influence a lineup is inappropriate."

Finally, the court stated that, upon request, it would charge the jury that the fact that a witness claims to be certain of her identification does not mean that the identification is accurate. Ultimately, such a charge was given.

On the People's direct case, Farhana testified to her recollection of the robbery and identified defendant as the perpetrator. After the People rested, defendant renewed his motion to admit expert testimony on eyewitness identification. Pointing to Farhana's testimony that she screamed during the robbery, Detective DeJesus' description of Farhana as frightened more than an hour after the robbery, and the inherent stressfulness of the event, defendant sought to introduce expert testimony that stress impairs the accuracy of an identification. Since Farhana testified that the incident took only a few seconds, defendant asserted that his expert should be allowed to testify that the less time an eyewitness has to observe an event the less accurately it will be remembered. Defendant also argued that the expert should be allowed to offer testimony to the effect that the violent circumstances of the robbery, including the use of a knife and the ripping of Farhana's chain, would adversely affect her ability to remember the event, as would the fact that Farhana's attention would have been focused on the weapon rather than on the perpetrator's face. Defendant also intended to have the expert testify concerning the greater likelihood of an inaccurate identification in a cross-racial crime such as this one, which involved a victim of South Asian descent and an African-American perpetrator.

Defendant further argued that the identification was affected by certain investigation techniques that had been used in this case. Thus, defendant contended, the fact that Detective Dorvil told Farhana that the police had a suspect before she viewed the lineup may have impacted her identification. As to lineups in general, defendant wanted to elicit expert testimony on the subject of the relative reliability of sequential, simultaneous and double blind lineups. The deficiency in the lineup conducted here, defendant claimed, lay in the fact that Dorvil knew the suspect's identity as he supervised the lineup.

The court reaffirmed its earlier determination not to allow expert testimony, stating:

"I, having had the benefit of the witness'[s] testimony, see nothing unique about this case that would present issues that are beyond the ken of the ordinary juror. All these issues were explored adequately on cross-examination and have been brought into question. They can be argued. There will be a charge."

On defendant's case, his counsel presented an alibi defense. It was defendant's position that he could not have robbed Farhana at 3:20 P.M. on June 2 at the Essex/Delancey subway station because he had picked up the daughter of his fiancée at 3:00 P.M. that day at a school located at 933 Herkimer Street in Brooklyn. To buttress this claim, defendant offered in evidence a sign-in/sign-out sheet purporting to document, by virtue of his signature thereon, that defendant had in fact made the pickup at the time he claimed. Defendant's fiancée, Mary Nimmons, testified that she obtained the sign-in/sign-out sheet from Carolyn Murphy, her daughter's assistant teacher.

An issue developed as to when Mary Nimmons picked up the sign-in/sign-out sheet. Although defendant was not arrested for the June 2 robbery of Farhana U. until June 22, Murphy testified that she was sure that defendant signed the sign-in/signout sheet on June 2 "[b]ecause the next day [June 3] Mary came to get this document." Since it is difficult to see any use defendant could have anticipated for the sign-in/sign-out sheet other than as support for an alibi defense, and he was not arrested for the robbery of Farhana U. until June 22, Murphy's testimony was obviously devastating to his position that the wrong person had been charged with the June 2 robbery.

Similarly, when defense counsel asked Nimmons on direct examination about when she picked up the sign-in/sign-out sheet, she stated: "But, I didn't go there on June 2nd. It was probably about the next day." On cross-examination, she repeated that she went to pick up the sign-in/sign-out sheet on June 3, but, when asked why she did so, indicated that defendant called her after his arrest. Nevertheless, when cross-examined further, she reiterated the following:

"Q. And this incident occurred on June 2nd?

"A. Yes.

"Q. And you went to the school the following day?

"A. Yes."

The trial resulted in defendant's conviction. Defendant now appeals, arguing, among other things, that, under People v Le-Grand (8 NY3d 449 [2007], supra), Supreme Court erred in excluding the expert testimony he proffered on the accuracy of eyewitness...