People v. Boyer

• Decision Date: 28 March 2006
• Citation: 6 N.Y.3d 427,846 N.E.2d 461
• Court: New York Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of New York, Respondent, v. John BOYER, Appellant.

846 N.E.2d 461

6 N.Y.3d 427

The PEOPLE of the State of New York, Respondent, v. John BOYER, Appellant.

Court of Appeals of New York.

March 28, 2006.

Center for Appellate Litigation, New York City (David J. Klem and Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Alan Gadlin and Mark Dwyer of counsel), for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

The People ask us to extend the "confirmatory identification" exception derived from People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462 [1989] to situations where a police officer's initial encounter with a suspect and subsequent identification of that suspect are temporally related, such that the two might be considered part of a single police procedure. To do so, however, would run afoul of CPL 710.30. Moreover, such an exception would eliminate the protections offered by a Wade hearing even when the initial police viewing — albeit part of a single police procedure — was fleeting, unreliable and susceptible of misidentification.

The Facts

On November 11, 2000, at 6:05 P.M., Michael Todd was in his Manhattan apartment when he noticed someone on the fire escape of the building across the courtyard. Although the sun had set, there were lights in the courtyard and Todd used his binoculars to take a closer look. Todd saw someone he later identified as Black or Hispanic, wearing a red sweater or sweatshirt, dark pants and a hat, but he was unable to make out the details of the individual's face. After seeing the person attempt to open several windows, Todd called 911.

Officers Cremin, Sandoval, O'Boyle and Brennan responded to the radio call of a burglary in progress, involving a male Black or Hispanic. Entering the court-yard, they heard Todd direct them to the fire escape. Eventually, at least two of the officers saw a person crouching on the fire escape several floors up and shone their flashlights on him. Officer Cremin told the individual to come down but he instead ran up the fire escape toward the roof. Officer O'Boyle was able to observe only the individual's clothing. Officer Cremin, however, later testified that he was able to see the individual's face — a male Hispanic with facial hair — as well as his dark jacket and pants when the man, running to the roof, stopped for two to four seconds on the fourth or fifth story fire escape (some 40 to 50 feet up) and looked down. Officer Cremin radioed a description to his fellow officers but did not mention facial hair.

Several officers made it to the roof but the man was already gone. From the roof, they saw an individual wearing a black jacket and dark pants in a small alley adjacent to the building. One of the officers ordered the man to stop but he ran from the alley. Officer Brennan sent a radio call that a male Hispanic dressed in black was running north on Broadway toward Dyckman Street. Auxiliary Police Sergeant Escoto, who happened to be working in the area that day, heard the radio transmission and spotted defendant, wearing dark pants, a red shirt and black jacket, on Dyckman Street running east toward Broadway. When Escoto approached defendant, defendant was out of breath and sweating. Other officers quickly arrived and defendant was taken into custody.

One of the officers radioed for another officer to come make an identification. Although Officer Cremin was unsure whether he had heard this transmission, he arrived at the scene where defendant was being held, after having searched for the suspect in a subway station and spoken with a possible witness inside a store. Approximately 30 minutes had elapsed since the initial 911 call. Officer Cremin observed defendant sweating, noticed his rapid heartbeat and identified him as the man he had seen on the fire escape. Following defendant's arrest, the prosecution made voluntary disclosures but failed to mention a pretrial identification and served no CPL 710.30(1)(b) notice. Defendant moved to preclude any identification testimony based on the lack of notice.

During defendant's pretrial Huntley hearing — centered on possible suppression of statements not at issue here — Officer Cremin testified about his street identification and also made an in-court identification of defendant. After the hearing, defendant argued that both the out-of-court and in-court identifications should be precluded due to the lack of CPL 710.30 notice. The court, however, found that no notice was required and permitted Officer Cremin to testify at trial about his out-of-court identification and to identify defendant as the individual he had observed on the fire escape. Officer Cremin was the only witness to identify defendant as the individual on the fire escape.

Defendant was convicted of two counts of attempted second-degree burglary. The Appellate Division affirmed the conviction, holding that Officer Cremin's identification "constituted a confirmatory identification that was exempt from the notice and hearing requirements of CPL article 710." We now reverse and order a new trial.

The Applicable Law

CPL 710.30 could not be clearer. The Legislature has prescribed that, within 15 days of arraignment, the prosecution must serve upon the defendant notice of its intention to introduce at trial "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such" (CPL 710.30[1][b]). Upon the service of notice, "the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress" the identification (CPL 710.30[2]). If notice is not given, the prosecution will be precluded from introducing such evidence at trial, unless (1) it is permitted to serve a late notice for good cause shown, or (2) the defendant has moved to suppress the identification testimony and the motion is denied (see CPL 710.30[2], [3]). Neither of these exceptions is relevant here.

CPL 710.30 underscores and facilitates the defendant's right, prior to trial, to test the reliability of any out-of-court identifications that the People intend to introduce. The statutory scheme ensures that the identifications are not the product of undue suggestiveness, and lessens the possibility of misidentification (see People v. Rodriguez, 79 N.Y.2d 445, 449, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992]; People v. Newball, 76 N.Y.2d 587, 590-591, 561 N.Y.S.2d 898, 563 N.E.2d 269 [1990]). The statutory mandate is plain and the procedure simple: the People serve notice, the defendant moves to suppress and the court holds a Wade hearing to consider the suppression motion. A court may summarily deny a suppression motion without a hearing only if "[t]he motion papers do not allege a ground constituting [a] legal basis for the motion" (CPL 710.60[3][a]). Thus, once the People serve notice that they intend to introduce identification testimony, the defendant may choose to respond with a motion to suppress that testimony and, so long as the motion alleges undue suggestiveness, the defendant is generally entitled to a Wade hearing.

We have recognized, however, two instances when, as a matter of law, the identification at issue could not be the product of undue suggestiveness. Under such circumstances, the defendant is not entitled to a Wade hearing and thus the People are not obligated to provide notice pursuant to CPL 710.30(1)(b). This so-called "confirmatory identification" exception carries significant consequences and is therefore limited to the scenarios set forth in People v. Wharton and People v. Rodriguez, where there is no risk of misidentification. As we noted in Rodriguez, a court may summarily deny a Wade hearing (and hence no CPL 710.30 notice would be required) where the court concludes that, as a matter of law, the identifying, civilian witness knew the "defendant so well that no amount of police suggestiveness could possibly taint the identification" (79 N.Y.2d at 453, 583 N.Y.S.2d 814, 593 N.E.2d 268).

Here, we are concerned only with the Wharton scenario. In Wharton, an experienced undercover officer observed the defendant face-to-face during a planned buy-and-bust operation. The officer then radioed his backup team with a description of the defendant, who was immediately arrested. As planned, within five minutes of the arrest, the purchasing officer drove past the defendant specifically for the purpose of identifying him, and then again identified him a few hours later at the police station.

Under such circumstances, we held that the defendant was not entitled to a Wade hearing (and thus would not be entitled to CPL 710.30 notice) to test the officer's identification, reasoning that

"[t]he viewing by this trained undercover narcotics officer occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure. Additionally, as we have observed in this kind of situation, it lent assurance that an innocent person was not being detained by reason of a mistaken arrest. The undercover officer's participation in the criminal apprehension operation at issue was planned, and he was experienced and expected to observe carefully the defendant for purposes of later identification and for completion of his official duties" (74 N.Y.2d at 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462 [citations omitted]).

We further stated that there is no "categorical rule exempting from requested Wade hearings confirmatory identifications by police officers by merely labeling them as such. Where the nature and circumstances of the encounter and identification may warrant, a hearing should and undoubtedly will be held" (id. at 923, 550 N.Y.S.2d 260, 549 N.E.2d 462 [citation omitted]).

Thus, the quality of the officer's initial viewing...