People v. Dow

• Decision Date: 21 May 1970
• Citation: 34 A.D.2d 224,310 N.Y.S.2d 558
• Parties: The PEOPLE of the State of New York, Respondent, v. Roland DOW, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 558

310 N.Y.S.2d 558

34 A.D.2d 224

The PEOPLE of the State of New York, Respondent, v. Roland DOW, Appellant.

Supreme Court, Appellate Division, Third Department.

May 21, 1970.

Louis J. Casella, Broome County Public Defender (John E. Murray, Binghamton, of counsel) for appellant.

Stephen Smyk, Broome County Dist. Atty., Binghamton, for respondent.

Before HERLIHY, P.J., and AULISI, STALEY, COOKE and SWEENEY, JJ.

AULISI, Justice.

This is an appeal from a judgment of the County Court of Broome County, rendered March 30, 1967, upon a jury verdict convicting defendant of the crimes of rape in the first degree, assault in the second degree and burglary in the second degree.

The victim of the crimes was a twenty-eight year old housewife and mother of an eight month infant. At approximately 11:00 A.M. on a weekday morning, she heard a knock on her back door and answering it, she saw the defendant who was seeking directions. Defendant received the information he requested from complainant during which time she observed that he was light complexioned, had a large facial scar and wore a black cowboy hat. He then drove away in a green pickup truck. At 1:30 P.M., the same afternoon, she again heard a knock at the back door. When she went to the back of the house to open it, she was grabbed from behind, the defendant apparently being already in the house. After initially demanding money, defendant dragged the complainant to a bedroom where she was raped. He then bound her wrists and ankles with her husband's neckties and made his escape. Complainant was able to untie herself, and since the telephone cord had been cut, she hastened to a neighbor's house where the police were notified.

Defendant's first and second points on the present appeal are concerned with allegedly improper pretrial identifications of defendant by complainant. Within a half hour after the crimes were committed, defendant was returned to the house of the complainant where she identified him as her assailant. Later in the day, complainant again identified defendant at the Sheriff's office. It is argued that these procedures violated defendant's constitutional rights and necessitated a court determination of whether or not the complainant's in-court identification was affected by the prior allegedly illegal identifications.

It is conceded that the rules set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 requiring the presence of defendant's counsel at any out-of-court confrontation of defendant with witnesses, are inapplicable in the present case because Stovall v. Denno,388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 has held these rules to be prospective only and these identifications occurred before Wade and Gilbert. The only issue, therefore, is whether the pretrial identification procedures were so unfair as to amount to a denial of due process (see People v. Logan,25 N.Y.2d 184, 303 N.Y.S.2d 353, 250 N.E.2d 454; People v. Ballott, 20 N.Y.2d 600, 606, 286 N.Y.S.2d 1, 6, 233 N.E.2d 103, 106); that is, whether or not the confrontations were so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant was deprived of due process of law (see Stovall v. Denno, Supra, 388 U.S. at pp. 301, 302, 87 S.Ct. 1967). As the court in Stovall went on to say, a claimed violation of due process in the conduct of a confrontation depends on the totality of the circumstances surrounding it.

Defendant relies heavily on People v. Ballott (supra). In that case, the court condemned a pretrial identification held one year after the commission of a robbery where the witness had seen the robber only briefly during the commission of the crime. Moreover, that witness was able to identify the defendant only after he had, at her request, put on a hat and coat--similar to those worn by the robber--and uttered words somewhat like those spoken during the robber. The court in Ballott was thus not able to say that the in-court identification was not predicated, at least in part, upon the earlier suggestive show-up at the police station a year after the crime had been committed.

The present case is clearly distinguishable from Ballott. The victim identified the defendant shortly after the commission of the crime and the record clearly establishes that the victim had ample opportunity to closely observe the defendant both before and during the commission of the crimes enabling her to identify defendant on the basis of his physical characteristics (People v. Weis, 32 A.D.2d 856, 857, 301 N.Y.S.2d 186, 191, cert. den. 397 U.S. 1047, 90 S.Ct. 1377, 25 L.Ed.2d 659 (decided April 20, 1970)). Furthermore, at the time of the first identification, defendant was wearing clothes, apparently stolen from complainant's bedroom, which complainant was able to positively identify as belonging to her husband.

Under the 'totality of circumstances' the pretrial identifications were not so 'unfair' as to violate due process of law (People v. Logan, Supra, 25 N.Y.2d at pp. 193, 194, 303 N.Y.S.2d at pp. 359, 360, 250 N.E.2d at pp. 458, 459). Moreover, it is obvious that the in-court identification was not based on or tainted by the circumstances of the earlier identifications (see People v. Rivera, 22 N.Y.2d 453, 455, 293 N.Y.S.2d 271, 272, 239 N.E.2d 873, 874, cert. den. 395 U.S. 964, 89 S.Ct. 2107, 23 L.Ed.2d 750; People v. Brown, 20 N.Y.2d 238, 244, 282 N.Y.S.2d 497, 502, 229 N.E.2d 192, 195, cert. den. 390 U.S. 928, 88 S.Ct. 863, 19 L.Ed.2d 989). The in-court identification, therefore, was not rendered inadmissible or subject to preliminary inquiry (People v. Logan, Supra, 25 N.Y.2d at p. 193, 303 N.Y.S.2d at p. 360, 250 N.E.2d at p. 459; People v. Weis, Supra).

Defendant also argues that prejudicial publicity deprived him of a fair trial. Defense counsel moved for a mistrial during the course of jury selection for the purpose of requesting a change of venue from this court, which motion was renewed after the jury was selected. The basis of the motion was that the news media had made it known during the course of jury selection that defendant was an escapee from jail. The motion was denied but defense counsel was allowed to examine the prospective jurors as fully as he desired to determine if they had heard or read anything of an inadmissible nature and when deemed necessary, he...