People v. Falco
| Decision Date | 09 September 1971 |
| Citation | 67 Misc.2d 520,324 N.Y.S.2d 680 |
| Parties | The PEOPLE of the State of New York v. Michael FALCO, Defendant. |
| Court | New York Supreme Court |
Burton B. Roberts, Dist. Atty. Bronx County, by Kevin Gilleece, Dist. Attys. Office, for the People.
Santangelo & Santangelo, by George L. Santangelo and Michael Santangelo, New York City, for defendant.
The defendant has been charged in the Criminal Court with the crime of murder and is presently at liberty on $75,000 bail. The case is in the process of being presented to the grand jury. The district attorney by oral motion and not upon papers has moved this court for an order directing the defendant to appear in a lineup for the purpose of identification. The defendant, through counsel, has appeared and has objected thereto on the grounds that such evidence would not be admissible on the trial inasmuch as the filing of the complaint which charged him with the crime constitutes the commencement of the action (CPL § 1.20(17)), and that sections 60.25 and 60.30 permit such evidence of a prior identification as evidence in chief only if such identification took place prior to the commencement of the criminal proceeding.
Defendant further alleges that the only reason the district attorney is moving for the relief sought is to give the witness another opportunity to see the defendant prior to trial which apparently will not take place in the immediate future, and is solely for the purpose of permitting the witness to bolster the identification.
The district attorney has argued that such a lineup is for the defendant's benefit in that if the witness should fail to identify him, he will be in a better position at the trial.
Under the provisions of the Criminal Procedure Law, effective September 1, 1971 'A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court * * *' (CPL 1.20(17)), and a "Criminal proceeding' means any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state * * * or involves a criminal investigation.' (CPL 1.20(18).)
Sections 60.25 and 60.30 of the Criminal Procedure Law are denominated as 'rules of evidence'. Section 60.25 is concerned with 'identification by means of previous recognition, in absence of present identification' while section 60.30 is concerned with 'identification by means of previous recognition in addition to present recollection.'
Section 60.25 reads as follows: ' § 60.25 Rules of evidence; identification by means of previous recognition, in absence of present identification
1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:
(a) Such witness testifies that:
(i) 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
(ii) On a subsequent occasion, but prior to the criminal proceeding, he observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person whom he recognized as the same person whom he had observed on the first or incriminating occasion; and
(iii) He is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and
(b) It is established that the defendant is in fact the person whom the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his recognition on such occasion.
2. Under circumstances prescribed in subdivision one, such witness may testify at the criminal proceeding that the person whom he observed and recognized on the second occasion is the same person whom he observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized on the second occasion, constitutes evidence in chief.'
At the outset no claim is present that the witness before the grand jury is 'unable at the proceeding to state on the basis of present recollection, whether or not the defendant is the person in question' (CPL 60.25). Hence at the outset this section would appear to have no applicability to the defendant's claim.
Section 60.30 reads as follows: ' § 60.30. Rules of evidence; identification by means of previous recognition, in addition to present identification
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, but prior to the criminal proceeding, 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 is noted, as defendant emphasizes, that both sections 60.25 and 60.30 are addressed to circumstances where 'In any criminal proceeding in which the defendant's commission of an offense is in issue * * *'.
It is the construction to be given to this phrase which creates the primary issue here.
The defendant contends that because a criminal proceeding has already begun, and a grand jury inquiry is under way, the requested lineup is not to be allowed as such lineup cannot meet the requirement that it take place 'on a subsequent occasion but prior to the criminal proceeding * * *' (CPL 60.25 & 60.30(c)).
The defendant also urges that the rules of evidence set forth in the Criminal Procedure Law upon which he relies (CPL §§ 60.25 and 60.30) are applicable to a grand jury proceeding (CPL 190.30).
On the other hand the district attorney argues that the phrase 'In any criminal proceeding in which the defendant's commission of an offense is in issue' must be given a limited construction and that it cannot in any event refer to a grand jury proceeding.
The Staff Comments to these sections provide support to the district attorney's position. Sections 60.25 and 60.30 now in final form were first numbered in the proposed Criminal Procedure Law and were based upon sections 30.30 and 30.40. (See 'Proposed New York Criminal Procedure Law' published by Edward Thompson Co. in September 1967.)
The Staff Comments applicable to section 60.25 make it very clear that this section was designed to pertain to the presence of an identification witness at a trial and to eliminate certain evidentiary difficulties which were found in the application of section 393--b of our former Code of Criminal Procedure. That section read 'When identification of a person is in issue, a witness who has no a previous occasion identified such person may testify to such previous identification * * *'.
After analyzing the problems attendant upon a failure to make an in-trial identification where there has been a prior identification the Comments continue 'upon the premise that both sec. 393--b and the decisions construing it ignore the true purpose and value of 'previous identification' testimony, the proposed section reformulates the principle along different lines.
'The chief importance of identification by means of previous recognition lies in cases where the witness owing to the lapse of time or other factors Is unable to make a trial identification.' (Italics added.)
After analyzing the cases in which conflicting views were expressed as to whether or not identification prior to trial could constitute evidence in chief of a trial where a defendant's...
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Special Prosecutor (Onondaga County) v. G. W.
...of criminal subjects. They have considered motions for line-ups (People v. Vega, 82 Misc.2d 718, 370 N.Y.S.2d 429; People v. Falco, 67 Misc.2d 520, 324 N.Y.S.2d 680; for blood tests (People v. Longo, 74 Misc.2d 905, 347 N.Y.S.2d 321) for surgical operations to recover bullets (People v. Smi......
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...range of criminal subjects. They have considered motions for lineups (People v. Vega, 82 Misc.2d 718, 370 N.Y.S.2d 429; People v. Falco, 67 Misc.2d 520, 324 N.Y.S.2d 680); for blood tests (People v. Longo, 74 Misc.2d 905, 347 N.Y.S.2d 321), for surgical operations to recover bullets (People......
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