People v. Bolden

• Decision Date: 14 December 1982
• Parties: , 445 N.E.2d 198 The PEOPLE of the State of New York, Respondent, v. Curtis BOLDEN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 22

459 N.Y.S.2d 22

58 N.Y.2d 741, 445 N.E.2d 198

The PEOPLE of the State of New York, Respondent, v. Curtis BOLDEN, Appellant.

Court of Appeals of New York.

Dec. 14, 1982.

Martin Diennor, New York City, for appellant.

Mario Merola, Dist. Atty., New York City (Esther Furman and Billie Manning, Asst. Dist. Attys., New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 83 A.D.2d 921, 442 N.Y.S.2d 777, should be affirmed.

We do not reach the question of negative identification argued by defendant. On defendant's attorney's cross-examination of one of the victims, he asked whether she had ever said she did not get a good look at the perpetrator. Her unresponsive answer was that she had been shown a number of photographs at the time she made that statement. By failing to move to strike that unresponsive answe defendant's attorney opened the door to an explanation by the People concerning the circumstances under which she had seen the photographs (cf. People v. Melendez, 55 N.Y.2d 445, 451-452, 449 N.Y.S.2d 946, 434 N.E.2d 1324).

GABRIELLI, Judge (concurring).

The majority, by concluding that defense counsel opened the door to admission of negative identification testimony in this case, fails to address the legal question presented. Inasmuch as I believe this issue was properly presented for our review and because I believe that such testimony is relevant and should be received in evidence, I am compelled to concur in the result reached by the majority and to reach the main question of law argued by the parties. A brief review of the facts in this case is necessary to place the negative identification issue in its proper context and focus.

The defendant was convicted, inter alia, of two counts of rape in the first degree arising from two separate incidents. The modus operandi in both instances was similar. In each case, as the victim opened the door to enter her apartment, the defendant emerged from the hallway, forced his way inside, and then raped his victim. Defendant's fingerprints were discovered in the apartment of Evelyn B., his second victim. His first victim, Anne L., was able to identify defendant at a pretrial lineup and again at trial. In addition, at trial, Detective Arthur Sheehy of the Bronx sex crimes squad testified that before defendant was apprehended, he showed Anne L. a photo array, which did not contain a picture of the defendant, and that Anne L. failed to identify any of the photographed individuals as the perpetrator of the crime. The issue on appeal is whether this negative identification testimony was properly admitted at trial.

It has long been the rule in New York that a witness cannot testify at trial that he overheard an eyewitness make a pretrial identification of the defendant (e.g., People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841; People v. Caserta, 19 N.Y.2d 18, 277 N.Y.S.2d 647, 224 N.E.2d 82; People v. Malloy, 22 N.Y.2d 559, 293 N.Y.S.2d 542, 240 N.E.2d 37). Thus, in Trowbridge, we held that a police officer could not testify that he heard the victim of a robbery identify the defendant, then being held at police headquarters, as the person who had committed the crime. In contrast, CPL 60.30 provides that the identifyi witness himself can take the stand and testify that, prior to trial, he identified the defendant in a lineup or under other circumstances. ¹

The rationale behind the Trowbridge rule is twofold. First, the statement of the third-party witness is hearsay. An out-of-court statement of the declarant, communicated at trial by a third party, is generally hearsay if it is offered for the truth of the fact asserted in the statement (Richardson, Evidence [Prince, 10th ed], § 200). In the Trowbridge situation, the out-of-court declaration of the eyewitness is offered primarily for the truth of the identification statement.

The second reason underpinning the Trowbridge rule is that such third-party testimony improperly bolsters the identification testimony of an eyewitness (e.g., People v. Trowbridge, supra; People v. Malloy, supra). There is the possibility that mere repetition by a third party that an identification was made will improperly influen the jury's belief in the reliability of the identification. Furthermore, there is also a danger that the jury will become confused by the testimony and will reason that both the eyewitness and the third-party witness could not be wrong about the identification (see Sobel, Eyewitness Identification, § 30). The testimony of the third party is not probative of whether the defendant was the person who committed the crime, but it could at best establish that the eyewitness, prior to trial, identified the defendant in the presence of others.

Third-party negative identification testimony is fundamentally different from the third-party identification testimony prohibited by Trowbridge and its progeny. First, negative identification testimony is not hearsay. Such testimony by a third-party witness is not offered in evidence for the truth of the statement made by the declarant eyewitness. Rather, it is offered only to prove that the eyewitness possesses the ability to distinguish the particular features of the perpetrator of the crime. In this case, the statement of Detective Sheehy that Anne L. failed to identify her assailant from a group of photographs, none which showed the defendant, is not hearsay because it was offered in evidence solely to demonstrate the victim's powers of perception, memory and reasoning.

In addition, negative identification testimony does not bolster the identification made by the eyewitness. Rather, it merely vouches for the credibility of the eyewitness. Negative identification testimony does not involve the continued repetition of evidence that an identification was made, and there is virtually no danger that it will lead the jury mistakenly to believe that someone other than the eyewitness himself positively...