People v. Collins

• Decision Date: 03 November 1983
• Parties: , 456 N.E.2d 1188 The PEOPLE of the State of New York, Respondent, v. Diane COLLINS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 65

469 N.Y.S.2d 65

60 N.Y.2d 214, 456 N.E.2d 1188

The PEOPLE of the State of New York, Respondent, v. Diane COLLINS, Appellant.

Court of Appeals of New York.

Nov. 3, 1983.

Henriette D. Hoffman and William E. Hellerstein, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty. (Shulamit Rosenblum and Barbara D. Underwood, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The defendant has been convicted of attempted grand larceny for demanding money under threat of physical harm in telephone calls recorded by the police. The Appellate Division, 84 A.D.2d 35, 445 N.Y.S.2d 168, affirmed the conviction and the defendant appeals. The issue is whether testimony of the victim's daughter, an acquaintance of the defendant, identifying the defendant as the caller on the recordings should have been excluded because of allegedly suggestive police conduct at the time of the initial voice identification.

In September, 1976 a man called Mrs. Otti Cohen and demanded that she pay him $3,000. She recognized the voice of the caller as that of Bobby Stephenson, a man who had previously lived with her daughter Ruby. In the initial conversation the caller, apparently inadvertently, acknowledged that he was "Bobby". In subsequent calls he denied that he was Bobby and threatened harm to the victim's family if the money was not paid.

Mrs. Cohen notified the police who, with her consent, recorded three calls concerning the money demands. One of the calls was made by the man Mrs. Cohen identified as Bobby Stephenson. Two of the calls were made by a woman the victim was unable to identify.

Mrs. Cohen agreed to pay the money at a place selected during the telephone conversations. Several days after the initial call she arrived at that location in a taxi driven by an undercover police officer and gave the defendant $800 in an envelope. The defendant was then placed under arrest by the police. After her arrest and later at the trial the defendant denied making the calls and denied any knowledge of the scheme claiming that she was simply picking up the money for a friend known as "Jo-Jo".

That same day the victim's daughter Ruby was asked to come to the police station to see if she could identify the voices on the recordings. When she arrived she saw the defendant sitting alone at a desk. She was acquainted with the defendant through Stephenson. They had previously socialized on several occasions and had spoken briefly on the telephone. However Ruby did not know that the defendant had been arrested in connection with the scheme. And, although the defendant was then in custody, she was not in handcuffs.

After hearing recordings of the calls Ruby identified the male caller as Bobby Stephenson and the woman as the defendant. She testified to this at the trial over the defendant's objection.

On appeal to the Appellate Division the defendant contended that the ability of the victim's daughter to see her at the police station prior to the voice identification was inherently suggestive. Relying on cases condemning suggestive police practices with respect to pretrial visual identifications she contended that the court erred in denying her motion to exclude the testimony concerning the voice identification. The Appellate Division affirmed concluding that under the circumstances, particularly the prior relationship between Ruby Cohen and the defendant, there was no substantial risk of irreparable mistaken identification.

It is now familiar law that the due process clause of the State and Federal Constitutions precludes the police from employing suggestive tactics during a pretrial identification (see, e.g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379). It is also settled in this State that a violation of the rule may require suppression of testimony concerning the pretrial identification (People v. Adams, supra) as well as the witness's identification of the defendant at trial (compare the Federal rule Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140). The prior cases, however, generally dealt with visual identifications and not, as here, with a voice identification. Cases involving allegedly suggestive pretrial voice identifications have been presented to the Supreme Court (see, e.g., Neil v. Biggers, 409 U.S. 188, 195, 93 S.Ct. 375, 380, 34 L.Ed.2d 401) and this court (People v. Allweiss, 48 N.Y.2d 40, 49, 421 N.Y.S.2d 341, 396 N.E.2d 735), but neither court has expressly addressed the issue. On principle, however, it would appear that due process should have some application to pretrial voice identifications.

The basic concern with respect to pretrial visual identifications has been to eliminate or minimize the risk of convicting the innocent (United States v. Wade, supra; People v. Adams, supra, 53 N.Y.2d pp. 250-251, 440 N.Y.S.2d 902, 423 N.E.2d 379). Experience has shown that the risk is greatest in cases of eyewitness identifications generally, and specifically in those cases where the police have resorted to suggestive visual identifications at the pretrial stage (United States v. Wade, supra, 388 U.S. p. 228, 87 S.Ct. at p. 1932). Although voice identifications are less common there is no reason to believe that the risk of mistaken identification is reduced when they have been employed by the police prior to trial. It would seem that the ability of a person to make a reliable identification of another on the basis of his voice is at least as difficult as, and perhaps more difficult than, identifying him on the basis of his appearance.

The District Attorney urges that these concerns are not relevant in cases such as this where the witness and the defendant knew each other prior to the crime. She notes that under similar circumstances we have held inapplicable the statutory requirement that the People give the defendant pretrial notice of a police arranged identification (People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Tas, 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967). The...