People v. Dolphin
| Decision Date | 07 July 1980 |
| Citation | 77 A.D.2d 571,429 N.Y.S.2d 732 |
| Parties | The PEOPLE, etc., Respondent, v. Anthony P. DOLPHIN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Charles K. O'Neill, New York City, for appellant.
Thomas R. Sullivan, Dist. Atty., Staten Island (George E. Mc Vay, Asst. Dist. Atty., Staten Island, of counsel), for respondent.
Before HOPKINS, J. P., and TITONE, MANGANO and RABIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Richmond County, rendered November 14, 1978, convicting him of sodomy in the first degree and burglary in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress a showup identification by the complainant.
Judgment reversed, on the law and as a matter of discretion in the interest of justice, and the case is remitted to Criminal Term for a new trial which shall be preceded by a Wade hearing to determine whether there exists an independent basis apart from the showup for the complainant's in-court identification of defendant.
The defendant stands convicted of sodomy in the first degree and burglary in the second degree. The primary issue at trial, and now on appeal, is the identification of the defendant as the perpetrator. Upon review, we conclude that the judgment of conviction should be reversed because of (1) the illegality of the complainant's showup identification of the defendant, (2) the improper bolstering of the complainant's identification by other prosecution witnesses who observed the showup, and (3) the improper admission of certain photographic evidence.
At approximately 11:40 P.M. on December 21, 1977, the complainant, who was alone in her sister's apartment, was grabbed from behind, taken into an unlit bedroom and compelled to commit oral sodomy upon the assailant. Although she was instructed to keep her head turned away from the perpetrator's face, she was twice able to briefly observe his appearance. Each period of observation lasted only 10-15 seconds and was made under conditions of indirect lighting from other rooms in the apartment. The assault was interrupted by the complainant's boyfriend who had come to visit her. The boyfriend testified that when he entered the apartment, the complainant was lying on the bed crying hysterically. The police were subsequently called and arrived at about 12:50 A.M. At this time, the complainant was still very upset and agitated.
The complainant's sister was telephoned and told of the incident. One of the officers described the assailant to the sister who responded that it sounded like her next-door neighbor, whom she then described. After further conversation, the officer and the sister agreed that the neighbor was probably the perpetrator. Thereupon, a police officer went across the hall to the defendant's apartment and ascertained that he was asleep. The officer returned to the complainant's sister's apartment and waited for a detective.
Sometime after 1:00 A.M., the complainant's sister and a police detective arrived. The sister testified at trial that when she arrived home, the complainant was still hysterical. At approximately 1:30 A.M., the detective went to the defendant's apartment, woke the defendant and brought him into the hallway. The complainant remained seated on the living room couch, facing the defendant's door which was about 18 feet away. The purpose of taking the defendant into the hallway, under the pretense of questioning him, was to allow the complainant to make a surreptitious identification. Upon seeing the defendant, the complainant had an extreme physical and emotional reaction, and then verbally identified him as the assailant.
After a Wade hearing, the defendant's motion to suppress the identification based upon the illegality of the showup was denied. At trial, the complainant testified to the showup identification and identified the defendant based upon her present recollection. In addition, other prosecution witnesses, including the complainant's sister, boyfriend, and several police officers in attendance, testified to the circumstances of the showup, paying particular heed to the complainant's extreme reaction upon seeing the defendant, as well as her verbal identification.
Showup identifications are generally disfavored (People v. Smith, 46 A.D.2d 639, ...
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