People v. Gee
| Decision Date | 28 September 2001 |
| Docket Number | 4,98-05472 |
| Parties | PEOPLE OF THE STATE OF NEW YORK,CARL GEE,KA 98-05472. (Monroe Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT |
| Court | New York Supreme Court — Appellate Division |
PRESENT: PINE, J. P., WISNER, HURLBUTT, KEHOE AND GORSKI, JJ.
Opinion by Kehoe, J.:
Judgment unanimously affirmed.
On this appeal by defendant from a judgment convicting him of robbery in the first degree (Penal Law § 160.15 [4]) arising out of his forcible theft of cash from a convenience store clerk, we must determine whether defendant is entitled to suppression or preclusion of identification evidence in connection with the clerk's viewings of the store surveillance video and photographs depicting defendant's commission of the robbery. We conclude that he is not.
At 11:20 p.m. on November 14, 1997, defendant and a female accomplice held up the clerk of a Kwik-Fill Mini Mart. The evidence against defendant included the testimony of the clerk, who identified defendant at a pretrial lineup and at trial as the male robber. The jury viewed the store surveillance video, which depicts the robbery, and a one-sheet composite of five still photographs extracted from that video, which "stills" clearly depict defendant as the male robber. Further, the jury viewed a second composite of three of those stills, blown up and positioned alongside defendant's mug shot, showing the resemblance between the robber and defendant. The record makes clear that the clerk recounted the crime and identified defendant in court based on her observations during the robbery itself, which lasted about three minutes, and also based upon her involvement in a series of pretrial "viewings", as follows:
1) The clerk's initial viewing of the store security videotape in the presence of a police officer and the store manager on November 15, 1997. The security videotape is not a moving picture, but consists of a continuous succession of very quick cuts (10 per second) among four surveillance cameras positioned throughout the store. The viewing took place at the police station within a short time after the robbery, following the officer's retrieval of the videotape with the help of the store manager. The viewing lasted about 20 minutes, during which pertinent portions of the videotape were "freeze-framed" and/or replayed very slowly (which they must be in order for the viewer to discern any detail). During the viewing, the clerk said, "That's them", when a certain male and female were shown in the store. She also pointed out certain actions of the robbers, such as when the male robber displayed what appeared to be a firearm.
2) The clerk's initial viewing of a one-sheet composite of five stills taken from the videotape and depicting the individuals previously designated by the clerk. That viewing took place on November 19, 1997, five days after the robbery. During that viewing, a second police officer informed the clerk that the pictures were from the videotape. At the officer's request, the clerk confirmed that the stills were accurate depictions of the robbery and its perpetrators, and she specifically identified a male individual as one of the robbers.
3) The clerk's viewing of a lineup on December 29, 1997, during which the clerk identified defendant as the male robber.
4) The clerk's subsequent re-viewings of both the store surveillance video and stills. Those viewings took place a few days before trial, in preparation for the clerk's testimony.
Viewings 2 and 3 are the subjects of the CPL 710.30 notice served by the People on March 12, 1998; of defendant's motion to suppress the clerk's identification testimony; of the Wade hearing conducted by County Court on May 15, 1998, at which the officer involved in viewings 2 and 3 was the sole witness; of the Trial Judge's May 19, 1998 decision, which denied defendant's Wade motion on the ground that the stills composite and lineup were not so suggestive as to give rise to a risk of misidentification; and of defendant's second point on appeal, which seeks suppression of the lineup and in-court identifications. In contrast, viewing 1 and possibly viewing 4 are the subject of defendant's first point on appeal, which seeks preclusion of all evidence relating to the clerk's identification of defendant. Viewings 1 and 4 are not mentioned in the CPL 710.30 notice, were not a subject of defendant's suppression motion, and were not mentioned during the Wade hearing or in the Trial Judge's Wade decision (all of which long preceded viewing 4). Indeed, the clerk's initial viewing of the store surveillance videotape (viewing 1) was first brought to defendant's attention at trial, during the testimony of the officer involved in viewing 1. Defendant promptly moved for preclusion of the clerk's identification testimony based on the People's failure to advise of that "identification procedure" in the CPL 710.30 notice. The Trial Judge denied that motion. Thereafter, viewing 4, the clerk's re-viewing of the video and stills in preparation for trial, was brought to defendant's attention during the clerk's testimony. That revelation did not result in any further demand for preclusion.
Notwithstanding his alibi defense, the jury found defendant guilty of robbery in the first degree.
In appellate counsel's brief, defendant contends that the court erred in denying his motion to preclude identification evidence based on the People's failure to give adequate notice of viewing 1 pursuant to CPL 710.30. He further contends that the court erred in denying his motion to suppress such identification evidence based on viewing 2, which he alleges was unnecessarily suggestive. In a pro se supplemental brief, defendant contends that he was denied a fair trial as a result of ineffective assistance of counsel and prosecutorial misconduct. We reject defendant's claims of ineffective assistance and prosecutorial misconduct, the various components of which are unpreserved for our review, based on matters outside this record, the subject of a prior unsuccessful CPL article 440 motion, and/or without merit.
Addressing defendant's second point first, we conclude that suppression of the clerk's lineup (viewing 3) and in-court identifications of defendant was properly denied. Defendant contends that showing the clerk the composite of stills from the surveillance video (viewing 2) was unduly suggestive and tainted the subsequent lineup (viewing 3) and in-court identification. He analogizes this case to those holding it unnecessarily suggestive for police to display defendant by himself or to show a single photograph of defendant (see, e.g., People v Johnson, 81 N.Y.2d 828, 831; People v Pries, 206 A.D.2d 873, 873-874), and seeks reversal of his conviction and remittal for a hearing to establish whether the clerk had an independent basis for her in-court identification of defendant (see generally, People v Burts, 78 N.Y.2d 20, 23-25; People v Holmes, 202 A.D.2d 1011, 1013, lv denied 83 N.Y.2d 911).
The cases cited by defendant have no application here. At the outset, we note that to treat the viewing of surveillance or security photos or videos as a police-arranged identification procedure, and to forbid a witness from viewing such depictions of the crime itself in furtherance of the police investigation, would be to reward defendant for his own hubris in committing the crime on camera. More fundamentally, we conclude that the viewing in question did not constitute an identification procedure, and certainly not an unnecessarily suggestive one. Here, police did not show the clerk any photographs of an individual known to be defendant, or indeed of any known individual believed to have committed the robbery. Authorities did not seek the clerk's confirmation that a known suspect was the culprit. Instead, police showed the clerk five depictions of the robbery itself, in the form of a composite of stills taken from the store security video showing the crime as it occurred. At the time of that viewing, defendant was not an identified suspect, but a perpetrator of unknown identity. Police showed the clerk the stills in order to ascertain for themselves which of the individuals entering the store that day had committed the robbery (cf., People v Edmonson, 75 N.Y.2d 672, 676-677, rearg denied 76 N.Y.2d 846, cert denied 498 US 1001). (Who the robbers were is not immediately obvious on the face of the video, given its quick-cutting style.) In response to police queries, the clerk merely confirmed where on the videotape the crime and its perpetrators had been captured on film, and that the stills fairly and accurately depicted the crime and its perpetrators. She did so, however, without identifying any particular suspects or known individuals as the perpetrators. Thus, the viewing was not an identification procedure, but rather an investigatory measure designed simply to allow the clerk to report the crime to police (cf., People v Cuevas, 167 Misc.2d 738, 741-742) and to authenticate the stills.
Insofar as a crime victim or other eyewitness is concerned, showing a depiction of the unknown criminal engaged in the actual commission of the crime is far different from -- and far less potentially suggestive than -- showing a depiction of a known individual suspected of being the criminal. Indeed, police in this case did not know the identity of the persons depicted in the photos (cf., People v Edmonson, supra, at 677). Consequently, they did not and could not, either by word or deed, draw the clerk's attention to any particular suspect or known person (cf., People v Edmonson, supra, at 677-678). Police were in no position to manipulate the surveillance images, comment on them intelligently, or otherwise suggest anything to the victim. The only ones open to any suggestion were the officers; the victim herself was "impervious to police suggestion" under these circumstances (People v Rodriguez, 79 N.Y.2d 445,...
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