People v. Blake

• Decision Date: 20 November 1974
• Citation: 35 N.Y.2d 331,320 N.E.2d 625,361 N.Y.S.2d 881
• Parties: , 320 N.E.2d 625 The PEOPLE of the State of New York, Respondent, v. Jeffrey BLAKE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 881

361 N.Y.S.2d 881

35 N.Y.2d 331, 320 N.E.2d 625

The PEOPLE of the State of New York, Respondent, v. Jeffrey BLAKE, Appellant.

Court of Appeals of New York.

Nov. 20, 1974.

Jack Minoff, New York City, for appellant.

Mario Merola, Dist. Atty. (Robert M. Cohen, New York City, and Ronald D. Degen, Bayside, of counsel), for respondent.

BREITEL, Chief Judge.

Defendant appeals from convictions for criminal possession of stolen property in the first degree (Penal Law, Consol.Laws, c. 40, § 165.50) and unauthorized use of a vehicle (Penal Law, § 165.05), after a jury trial. He was sentenced to probation on the stolen property charge and to a conditional discharge on the vehicle use charge.

The issue is whether identifications made by witnesses at prearraignment corporeal viewings of defendant absent counsel should be excluded.

The order of the Appellate Division affirming the convictions should be affirmed. Counsel at prearraignment viewings is not mandated in all circumstances, although often desirable. Consequently, uncounseled prearraignment viewings before the filing of an accusatory instrument do not invariably require exclusion of the identification thus obtained. Moreover, the question now presented was considered and determined adversely to defendant on his previous appeal.

In the early morning of October 19, 1968, in the Bronx, Patrolmen Wieber and Barclay observed defendant Blake and three companions in a 1967 Chrysler automobile, which later investigation revealed had been stolen. When the car proceeded without stopping through a stop sign, the officers followed in their patrol car and caught up with the Chrysler at a red stop light. Officer Wieber signaled the driver to pull over to curbside. Although the driver nodded assent, the car sped off, with the police in pursuit. During the four-block chase, Blake and a codefendant, Andrew Brown, exchanged gunfire with Officer Wieber. The chase ended when the Chrysler crashed into a parked automobile and its four occupants took off on foot. Three of the occupants, including defendant Blake, escaped, but Officer Barclay managed to capture one of the passengers, Oliver Ferguson.

With the help of information given by Ferguson, defendant was arrested on November 4, 1968. He was then placed in a Bronx Criminal Court detention cell with about 20 male prisoners (all under 30 years of age, and 16 or 17 of whom were Negroes). After separately viewing the group, Officers Wieber and Barclay each identified defendant as one of the occupants of the Chrysler. The viewings took place approximately two hours after arrest. Defendant was arraigned shortly after. He was indicted on December 16, 1968.

Defendant was later convicted, after a jury trial, in Supreme Court, Bronx County, of criminal possession of stolen property and unauthorized use of the automobile. The Appellate Division reversed on the law alone and directed a new trial, on the ground that the in-court identifications by the officers were improperly bolstered by their own testimony of their detention-cell identification on the People's direct case (37 A.D.2d 831, 325 N.Y.S.2d 730). This court reversed, holding that, since the identity of the defendant was in issue from the outset, the bolstering testimony was admissible under the statute on direct examination (32 N.Y.2d 935, 347 N.Y.S.2d 199, 300 N.E.2d 731; former Code Crim.Pro., § 393--b). On remand to the Appellate Division, for review of the facts, that court affirmed the convictions (42 A.D.2d 954, 348 N.Y.S.2d 352; CPL 470.40, subd. 2, par. (b); see CPL 470.25, subd. 2, par. (d)).

On the prior appeal to this court, it was necessary to determine whether the identification testimony was admissible at all, before considering whether it was admissible on the People's direct case. That determination would be the law of the case, assuming, what is unlikely, that the law of the case should be applied in criminal matters against the defendant (see State v. Hale, 129 Mont. 449, 291 P.2d 229; State v. Phillips, Mo., 324 S.W.2d 693). Even then extraordinary error or unfairness would require review De novo (cf. Cluff v. Day, 141 N.Y. 580, 582, 36 N.E. 182, 183; Politi v. Irvmar Realty Corp., 13 A.D.2d 469, 212 N.Y.S.2d 444; see, generally, 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5011.09; 1 Carmody-Wait, 2d, N.Y.Practice, § 2:64 et seq.; Note, Law of the Case, 40 Col.L.Rev. 268, 269). In any event, the court reaches the same determination on the present appeal.

Prior to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, counsel were not required at pretrial corporeal viewings of a defendant by identification witnesses. Such viewings were considered merely stages of police investigation (see Wade, supra, 388 U.S., at p. 227, 87 S.Ct. 1926). In the Wade and Gilbert cases (supra), however, the Supreme Court, recognizing the dangers of misidentification and improper suggestion in such viewings, mandated the presence of counsel for the accused at postindictment identifications (see Gilbert v. California, 388 U.S. 263, 272, Supra).

Although the Wade-Gilbert rationale seemed equally applicable to preindictment identifications, the Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, held that the Sixth Amendment right to counsel attaches 'only at or after the time that adversary judicial criminal proceedings have been initiated' (p. 688, 92 S.Ct. p. 1881). The court offered 'formal charge, preliminary hearing, indictment, information, or arraignment' as examples (p. 689, 92 S.Ct. p. 1882).

Both the Federal and State Constitutions guarantee an accused the right to counsel to aid in his defense (U.S.Const., 6th and 14th Amdts.; N.Y.Const., art. I, § 6). Although framed in more restrictive terms, ¹ the right to counsel under the State Constitution has, in some areas, been interpreted more expansively than under the Fifth and Sixth Amendments as interpreted by the Supreme Court (compare, e.g., People ex rel. Donohoe v. Montanye, 35 N.Y.2d 221, 360 N.Y.S.2d 619, 318 N.E.2d 781; People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537; People v. Malloy, 22 N.Y.2d 559, 293 N.Y.S.2d 542, 240 N.E.2d 37; People v. Bodie, 16 N.Y.2d 275, 266 N.Y.S.2d 104, 213 N.E.2d 441; People v. Friedlander, 16 N.Y.2d 248, 265 N.Y.S.2d 97, 212 N.E.2d 533; People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852; People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628; People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651; People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448). A significant number of the State cases antedate the Federal cases.

Prior to the Kirby case, this court, acting under what was logically considered to be the constraint of the Wade-Gilbert rules, accepted, without further analysis, their application to prearraignment viewings (see People v. Oakley, 28 N.Y.2d 309, 312, 321 N.Y.S.2d 596, 598, 270 N.E.2d 318, 319; People v. Logan, 25 N.Y.2d 184, 187, 303 N.Y.S.2d 353, 355, 250 N.E.2d 454, 455; cf. People v. Harrington, 29 N.Y.2d 498, 500, 323 N.Y.S.2d 971, 972, 272 N.E.2d 482, 483 (Burke, J., dissenting); People v. Rahming, 26 N.Y.2d 411, 417, 311 N.Y.S.2d 292, 297, 259 N.E.2d 727, 731). The State courts would continue, of course, to be bound by the Wade-Gilbert rules in requiring counsel at viewings after the onset of adversary judicial proceedings. This court, however, is now free to evaluate independently the necessity of mandating, under the State Constitution as it interprets it, the presence of counsel at prearraignment viewings, as a derivative of the right to counsel without traversing the necessarily vague and elusive byways of the constitutional right to due process (see Grano, Kirby, Biggers and Ash: Do any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich.L.Rev. 719, 742--755).

Obviously, it would be a fine protection to defendants in criminal cases if they had counsel at every stage of investigation and the ensuing judicial proceeding. Equally obvious it is that such an arrangement would be impractical. The enforcement of laws against crimes is in no way parallel to civil proceedings. Crimes, arrests, and detentions of alleged wrongdoers often occur in the context of violence, flight, pursuit, apprehension, and urgencies involving danger to life and limb. No planned scenarios are possible or desirable. There is trenchant need for quick verification of identity, cause for arrest and detention, and the desirability of early or even immediate release of those falsely accused of crime.

Even while it was thought that the Wade-Gilbert rules applied to prearraignment viewings, there were exempted viewings on the scene and immediately after the commission of the crime (People v. Logan, 25 N.Y.2d 184, 193--194, 303 N.Y.S.2d 353, 359--360, 250 N.E.2d 454, 458--459, Supra; Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1283--1284, cert. den. 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245). So, too, were exempted exigencies, such as, where the identifying witness was believed to be In extremis, or even just in the hospital (Stovall v. Denno, 388 U.S. 293, 302 87 S.Ct. 1967, 18 L.Ed.2d 1199, Supra; People v. Rivera, 22 N.Y.2d 453, 455, 293 N.Y.S.2d 271, 272, 239 N.E.2d 873, 874); see, generally,...