People v. Ball
| Decision Date | 09 November 1982 |
| Citation | 89 A.D.2d 353,455 N.Y.S.2d 444 |
| Parties | PEOPLE of the State of New York, Appellant, v. Harry Lee BALL, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ronald L. Fancher, Batavia, for appellant.
D. Michael Murray, Batavia, for respondent; Raymond Rodriguez, Batavia, of counsel.
Before DILLON, P.J., and SIMONS, DOERR, MOULE and SCHNEPP, JJ.
The People appeal from an order dismissing an indictment which charged the defendant with the crimes of forgery and criminal impersonation. The issue presented is whether testimony at the Grand Jury relating to photographic identification of defendant was "competent and admissible evidence" within the meaning of subdivision 1 of CPL 190.65.
We need but briefly summarize the Grand Jury testimony. The manager of a Radio Shack store in Batavia testified that on February 18, 1981 a person representing himself to be one William Potter exhibited Potter's motor vehicle operator's license and completed the purchase of certain C.B. equipment by signing and delivering a check in Potter's name; the check was dishonored and he thereafter learned that the purchaser was not Potter; he went to Batavia police headquarters and from an array of photographs of six white males, he selected one as that of the person who had impersonated Potter and "negotiated" the check. The police officer in charge of the investigation produced the photographic array which was marked as a Grand Jury exhibit; he testified that the photograph selected by the store manager was of the defendant and that upon arresting the defendant at his residence the C.B. equipment was found in the living room and recovered. On this evidence the Grand Jury returned the indictment.
After in camera inspection of the Grand Jury minutes, County Court ruled that the evidence of photographic identification was incompetent hearsay. No other proof of identity having been offered, the court concluded that the evidence was legally insufficient to establish that defendant committed the crimes charged.
The applicable statute provides that "a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense." (CPL 190.65, subd. 1.) The Legislature has also decreed that the provisions of article 60 of the CPL "governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings." (CPL 190.30, subd. 1.)
County Court reasoned that because testimony of pretrial photographic identification is not authorized under CPL 60.30 and has always been proscribed for use at trial under case law (see, e.g., People v. Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302), such evidence is incompetent hearsay under the rule of People v. Jung Hing, 212 N.Y. 393, 106 N.E. 105. That reasoning is not without support at nisi prius (see, e.g., People v. Brewster, Sup., 453 N.Y.S.2d 336 ). We disagree.
With the enactment of section 393-b of the former Code of Criminal Procedure, the "brand of hearsay" applied to prior identification testimony was removed (People v. Spinello, 303 N.Y. 193, 202, 101 N.E.2d 457). CPL 60.25 and 60.30 are successor statutes to section 393-b. Nothing contained in the language of those statutes prohibits use of testimony of prior photograph identification. Such testimony has been held inadmissible not because it is incompetent hearsay but for policy considerations bearing upon the integrity of the fact-finding process at trial. It is said that the evidence should be excluded because "not only is it readily possible to distort pictures as affecting identity, but also where the identification is upon photographs...
To continue reading
Request your trial
-
People v. Brewster
...action in all cases in which the accused was not in custody and not otherwise available for corporeal identification (People v. Ball, 89 A.D.2d 353, 355, 455 N.Y.S.2d 444; People v. White, 115 Misc.2d 304, 306, 454 N.Y.S.2d 216). We are mindful also of the additional burden that would be pl......
-
People v. Twitty
...with his initial identification (see, People v. Brewster, 63 N.Y.2d 419, 482 N.Y.S.2d 724, 472 N.E.2d 686; People v. Ball, 89 A.D.2d 353, 455 N.Y.S.2d 444). Indeed, the prosecutor expressly noted that the photograph was neither shown to the Grand Jury nor entered into evidence. Thus, becaus......
-
People v. Wallace
... ... Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302; People v. Christman, 23 N.Y.2d 429, 433, 297 N.Y.S.2d 134, 244 N.E.2d 703; People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82; People v. Peoples, 142 A.D.2d 610, 530 N.Y.S.2d 41; People v. Ball, 89 A.D.2d 353, 354-355, 455 N.Y.S.2d ... 444). Here, the victim improperly testified that she selected defendant's photograph from an array and a police officer also testified to the victim's selection of defendant's photograph. The prosecutor, in his opening statement, not only referred to ... ...
-
People v. Brewster
...custodian of police photographic records testify to the name of the person portrayed in the photograph is permissible (People v. Ball, 89 A.D.2d 353, 455 N.Y.S.2d 444; cf. People v. Logan, 25 N.Y.2d 184, 195, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. den. 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.......