People v. Burts

• Decision Date: 04 June 1991
• Citation: 78 N.Y.2d 20,574 N.E.2d 1024,571 N.Y.S.2d 418
• Parties: , 574 N.E.2d 1024 The PEOPLE of the State of New York, Respondent, v. Derrick BURTS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 418

571 N.Y.S.2d 418

78 N.Y.2d 20, 574 N.E.2d 1024

The PEOPLE of the State of New York, Respondent, v. Derrick BURTS, Appellant.

Court of Appeals of New York.

June 4, 1991.

Vincent F. Gugino, Linda S. Reynolds and Barbara Davies Eberl, Buffalo, for appellant.

[78 N.Y.2d 21] Kevin M. Dillon, Dist. Atty. (Raymond C. Herman and John J. DeFranks, of counsel), Buffalo, for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendant was convicted of highway robbery after a jury trial and the Appellate Division eventually affirmed the judgment. Before affirming, however, it concluded that the police used a suggestive photographic identification procedure to obtain defendant's identity from the two robbery victims. That ruling is not before us and is not challenged. The only issue before us on a grant of leave to appeal by a Justice of the Appellate Division is whether the Appellate Division took the proper corrective remedy by holding the appeal in abeyance while it remitted for a posttrial Wade hearing to consider evidence of independent source to justify in-court identification testimony.

The Appellate Division explained that the trial court, at the pretrial Wade hearing, had interfered with the People's opportunity to introduce evidence of any independent source for the victims' in-court identifications of defendant at trial. At the posttrial hearing, the prosecutor established an independent source to justify the identification testimony at trial. Both lower courts were satisfied in this respect and defendant's conviction was thereafter upheld by the Appellate Division, 162 A.D.2d 1020, 557 N.Y.S.2d 223. We conclude, under these circumstances, that the posttrial hearing procedure was not a proper remedy. There should have been a reversal of the conviction and a remittal for fresh proceedings, including a new Wade hearing and new trial, if so advised. We therefore conclude that the Appellate Division order should be reversed.

Paula Toms and Timothy Young were robbed when their car was stopped at a traffic light on a street in Buffalo. The robber threatened them with a knife, stole Young's wallet and Toms' purse, and fled. Toms and Young went to police headquarters to report the incident and described the man to the police. While at headquarters, they jointly viewed a "mug book" and simultaneously selected defendant's photograph as that of the robber. Defendant's arrest, indictment and conviction of two counts of first degree robbery ensued.

Defendant made a customary pretrial motion to suppress identification evidence. In response to defense counsel's attempt to cross-examine Toms at the hearing concerning defendant's appearance on the day of the robbery, the trial court limited the scope of the hearing to the issue "whether or not the photographic display * * * in any way may have tainted the possible in-court testimony of this witness by action of the police." No independent source basis for in-court identifications was developed, and the court denied the motion to suppress. While no testimony or evidence was introduced at the jury trial concerning the photo identification, both victims identified defendant at trial, without objection. During deliberations, the jury inquired whether the victims had identified defendant in a lineup or by mug shots. The court instructed the jury to decide the case based solely on the evidence presented during the trial.

On defendant's appeal from his judgment of conviction, the Appellate Division found that the joint photo identification by the victims at police headquarters was the product of impermissibly suggestive procedures. The Appellate Division then observed that the trial court's ruling "lulled the People into complacency or otherwise interfered with their opportunity to present evidence" of an independent basis for the victims' in-court identifications of defendant (156 A.D.2d 1010, 1011, 549 N.Y.S.2d 292). That rationale became the basis for its decision to hold the defendant's appeal in abeyance pending a remittal for a posttrial hearing to determine, nunc pro tunc, whether an independent source could be supplied to legitimatize the in-court identifications.

At the posttrial hearing, Toms testified that she had a clear view of the robber at close range and that she had given a physical description of the robber to the police. Young was deceased at the time of the hearing, but his trial testimony was admitted at the hearing pursuant to CPL 670.10. After the hearing court concluded that both victims had a "fully adequate opportunity" to view the robber and that their in-court identifications were "untainted by any suggestive pretrial police identification procedure," the Appellate Division affirmed the held-in-abeyance judgment of conviction.

In a series of search and seizure cases, this Court has held that where suppression court errors cause the People to fail to offer indispensable evidence or remove any incentive or need to do so, the combined remedy of remittal and posttrial corrective opportunity to fill the gap is permissible (see, People v. Crandall, 69 N.Y.2d 459, 515 N.Y.S.2d 745, 508 N.E.2d 657, rearg. denied 70 N.Y.2d 748, 519 N.Y.S.2d 1034, 514 N.E.2d 392; People v. Payton, 51 N.Y.2d 169, 433 N.Y.S.2d 61, 412 N.E.2d 1288; People v. Green, 33 N.Y.2d 496, 354 N.Y.S.2d 933, 310 N.E.2d 533; People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694). In striking a balance to insure a fair, full opportunity for the People to establish the admissibility of seized physical evidence, we concluded in the cited cases that abeyance and a posttrial...