People v. Blackman

• Decision Date: 30 April 1985
• Parties: The PEOPLE of the State of New York, Appellant, v. Neil BLACKMAN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 395

488 N.Y.S.2d 395

110 A.D.2d 596

The PEOPLE of the State of New York, Appellant, v. Neil BLACKMAN, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

April 30, 1985.

S.R. Kartagener, Brooklyn, for appellant.

W.M. Serra, Cuba, for defendant-respondent.

Before MURPHY, P.J., and SANDLER, ASCH and MILONAS, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County, entered May 19, 1982, granting defendant's motion to suppress all of the complainant's pre-trial out-of-court and in-court identification testimony, is reversed, on the law, the motion for suppression denied, and the matter remanded for an evidentiary hearing in accordance with this decision.

On September 1, 1981, the complainant, a gas station attendant, was ordered into a car by two persons, and during a drive of a few blocks was robbed by an unapprehended individual. The man he identified as defendant was the driver of the car. On September 4, 1981, defendant, driving a car which fit the complainant's description--an old black Buick Skylark--was apprehended by the employer of complainant. He held the defenda until complainant arrived at the scene and identified defendant as the driver.

Defendant moved, pursuant to CPL sec. 710.20, for a pre-trial Wade suppression hearing to determine the admissibility of the identification testimony to be given by the complainant at trial (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149). In opposition to this motion, the People noted that despite counsel's statements, there had been no "police-arranged" identification procedures and that defendant was identified by complainant at a confrontation arranged by a "private individual."

In an order entered on March 24, 1982, the Court granted defendant's application to the extent of directing "a Wade-type hearing," concluding that an issue of reliability was raised by the claimed conduct by private citizens that merited a pre-trial hearing to determine the appropriateness of admitting the identification into evidence. 113 Misc.2d 814, 449 N.Y.S.2d 842.

On the scheduled hearing date, the People refused to go forward with a Wade hearing, stating that since there was "no question of fact which exists as to the identification issue," the People would not call any witnesses at the hearing, and would instead "rely on the facts which were conceded by the defense in their moving papers, that there was no police action that existed." The Court then granted the motion suppressing all potential identification testimony by the complainant, both out-of-court and in-court.

Since the street confrontation at which the defendant was identified was arranged by a private citizen and was without police participation, defendant was not entitled to a Wade suppression hearing. However, the Court's determination to conduct a pre-trial hearing to permit it to evaluate the reliability of the identification testimony seems to us a discretionary determination that the Court was entitled to make under all the circumstances.

As pointed out by the Court of Appeals: "The rule excluding improper showups and evidence derived therefrom is different in both purpose and effect from the exclusionary rule applicable to confessions and the fruits of searches and seizures. In the latter cases generally reliable evidence of guilt is suppressed because it was obtained illegally. Although this serves to deter future violations, it is collateral and essentially at variance with the truth-finding process (see, e.g., People v. McGrath, 46 N.Y.2d 12 [412 N.Y.S.2d 801, 385 N.E.2d 541] ). But the rule excluding improper pretrial identifications bears directly on guilt or innocence. It is designed to reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by the police." (People v. Adams, 53 N.Y.2d 241, 250-51, 440...