People v. Brewster

• Decision Date: 20 July 1982
• Docket Number: K-10
• Citation: 115 Misc.2d 26,453 N.Y.S.2d 336
• Parties: The PEOPLE of the State of New York v. Leonard BREWSTER, Tromaine Johnson, and Felix Alfonso, Defendants
• Court: New York Supreme Court

Page 336

453 N.Y.S.2d 336

115 Misc.2d 26

The PEOPLE of the State of New York v. Leonard BREWSTER, Tromaine Johnson, and Felix Alfonso, Defendants.

Supreme Court, Criminal Term Queens County, Part K-10.

July 20, 1982.

Martin Kane, James Mulvaney, Kew Gardens, J. DeFelice, Ozone Park, for the motion.

S. Goldenberg, Asst. Dist. Atty., opposed.

MEMORANDUM

CORNELIUS J. O'BRIEN, Judge.

This is a dual motion on behalf of the defendants which seeks an order suppressing identification testimony pursuant to CPL § 710.20 and further seeks dismissal of the indictment pursuant to CPL § 210.35(5).

This matter was originally before the court on a Wade hearing. During the course of the hearing, it became apparent that the sole means of identification of all three defendants as the perpetrators of the crime was by photographic identification.

It is conceded by the People that, except at the Wade hearing before this court, and an aborted Wade hearing held before the Honorable Benjamin Glass on February 18, 1982, no corporeal identification was ever made as to any of the defendants by any of the witnesses to the crimes charged. In light of this testimony (discussed in more detail infra), the court, sua sponte, examined the Grand Jury minutes, in camera, to determine the mode of identification before that body, and requested the defendants' attorneys to file papers relative to the instant motion. The District Attorney was given time to respond. People v. Vega, 80 A.D.2d 867, 436 N.Y.S.2d 748 (2d Dept., 1981); People v. Kovzelove, 72 A.D.2d 608, 421 N.Y.S.2d 114 (2d Dept. 1979).

A reading of the Grand Jury minutes indicates that each witness who testified was asked, in substance, "Did there come a time when you made an identification of the person who committed the crime?" and each witness answered in the affirmative. The Grand Jury was never told that, in fact, each witness had identified only a photograph of a defendant.

The crimes for which these defendants stand indicted are particularly vicious, arising out of an incident which occurred on September 28, 1981 at about 12:30 P. M. On that date, four males, two armed with shotguns, entered a two-family dwelling in South Ozone Park, Queens, and forced four adults and two children to lie on the floor. Two of the males ransacked the house, a third stood watch over the victims, while a fourth went to the apartment of the upstairs tenant and brought her, at gunpoint, to the downstairs apartment. The entire incident lasted approximately one-half hour.

The next day, two of the complainants, Mrs. Anna Bradley and her daughter, Lynnette, went to the "Miraquick" facility at the 112th Precinct to view photographs. The women were seated at the same table and given trays of photos to look through. Lynnette Bradley selected a photo of defendant Brewster as being one of the men in the kitchen and showed the photo to her mother, who agreed with the identification. Anna Bradley identified a photo of defendant Johnson and showed it to the daughter. The daughter concurred with the mother's identification of Johnson.

On October 2, 1981, Denise Mullins, the occupant of the upstairs apartment, went to the Miraquick facility and, after viewing several hundred photographs, identified a photo of defendant Alfonso. (It was stipulated by the People that both defendant Brewster's and Johnson's photographs were contained in the array shown to Miss Mullins.) Miss Mullins was unable to identify either defendant Brewster or Johnson in court.

Neither Anna Bradley nor Lynnette Bradley were able to identify defendant Alfonso, either by photograph or in court.

Assistant District Attorney Anthony Communiello testified that he was given the case for the purpose of conducting a Wade hearing before the Honorable Benjamin Glass on February 18, 1982. In preparation for the hearing, Mr. Communiello showed each witness a photograph to ask whether, in fact, that was the photo she had selected at Miraquick. He was unable to state with certainty whether he showed the single photos to all three witnesses, or to two out of the three. Miss Mullins testified that she was not shown photos before the previous hearing.

Two of the defendants, Tromaine Johnson and Leonard Brewster, claim to have documented alibis for their whereabouts on the date and time in question. Mr. Brewster was allegedly at a clinic in Far Rockaway where he signed in and out, while Mr. Johnson was at an employment agency in New Hyde Park. A letter from that agency is contained in the court file. All three defendants have expressed a desire to submit to polygraph tests.

The pertinent statutes in this case with regard to the issue of the manner of presentation to the Grand Jury are CPL Sections 210.35(5), 190.65(1), 190.30, and 60.30.

They are set forth in pertinent parts as follows:

§ 210.35(5) provides: "A Grand Jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when:

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5. The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result."

§ 190.65(1) provides: "Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, 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." (emphasis added)

§ 190.30(1) provides: "1. Except as otherwise provided in this section, the provisions of Article sixty governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings."

§ 60.30 provides: "In any criminal proceeding in which the defendant's commission of an offense is in issue, a witness who testifies that (a) he observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the defendant is the person in question and (c) on a subsequent occasion he observed the defendant, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him as the same person whom he had observed on the first or incriminating occasion, may, in addition to making an identification of the defendant at the criminal proceeding on the basis of present recollection as the person whom he observed on the first or incriminating occasion, also describe his previous recognition of the defendant and testify that the person whom he observed on such second occasion is the same person whom he had observed on the first or incriminating occasion. Such testimony constitutes evidence in chief."

It has long been the law in this State that a witness may not, on the People's direct case, refer to a previous photographic identification of a defendant. People v. Caserta, 19 N.Y.2d 18, 277 N.Y.S.2d 647, 224 N.E.2d 82; People v. Baker, 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232; People v. Griffin, 29 N.Y.2d 91, 323 N.Y.S.2d 964, 272 N.E.2d 477.

A witness is allowed, as part of the People's direct case, to bolster an in-court identification by testifying that some time after the initial incident he observed the accused person under circumstances not violative of his constitutional rights "and then also recognized him as the same person whom he had observed on the first or incriminating occasion." (CPL § 60.30)

By statute, the provisions of Article 60 governing rules of evidence in criminal proceedings are specifically applicable to Grand Jury proceedings. ¹ It therefore follows that a witness in a Grand Jury proceeding may not be permitted to testify to a photographic identification of a defendant made subsequent to the initial incident, unless there is either a statutory or case law exception. There is no statutory exception contained in the Criminal Procedural Law. And under People v. Hagedorny, 272 A.D. 830, 70 N.Y.S.2d 511 (2nd Dept. 1947), a case cited with approval on several occasions by the Court of Appeals, it has been held that the "identification" demanded by Code of Criminal Procedure § 393-b, the predecessor of CPL § 60.30, is a corporeal identification. As stated in People v. Caserta, supra, 19 N.Y.2d at p. 21, 277 N.Y.S.2d 647, 224 N.E.2d 82, "Prior to the adoption of section 393-b of the Code of Criminal Procedure in 1927, the rule had long been that it was reversible error even to admit testimony by the witness himself that he had previously identified an accused in person (People v. Jung Hing, 212 N.Y. 393, 401 People v. De Martini, 213 N.Y. 203 ). The cases consistently hold that this established rule is relaxed by section 393-b of the Code of Criminal Procedure only to the extent of permitting a witness to testify to a previous identification by himself of the defendant in the flesh (People v. Cioffi, supra, p. 73 )."

The language of CPL § 60.30, insofar as pertinent here, is substantially identical to the language of Code of Criminal Procedure § 393-b. ²

It would therefore appear clear that the People may not in the Grand Jury elicit testimony that a witness made a subsequent photographic identification of a defendant. It is also clear that such evidence would be incompetent under the reasoning of the Court of Appeals in People v. Jung Hing, 212 N.Y. 393, 403, 405, 106 N.E. 105. ³

Under CPL § 190.65(1), supra, an indictment must be grounded upon competent admissible evidence.

In People v. Oakley, 28 N.Y.2d 309, 321 N.Y.S.2d 596, 270 N.E.2d 318, the Court of Appeals considered whether an indictment founded on prima facie, competent admissible evidence should be dismissed...