People v. Gonzalez

• Decision Date: 24 November 1981
• Citation: 431 N.E.2d 630,447 N.Y.S.2d 145,55 N.Y.2d 720
• Parties: , 431 N.E.2d 630 The PEOPLE of the State of New York, Respondent, v. Hector GONZALEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 145

447 N.Y.S.2d 145

55 N.Y.2d 720, 431 N.E.2d 630

The PEOPLE of the State of New York, Respondent, v. Hector GONZALEZ, Appellant.

Court of Appeals of New York.

Nov. 24, 1981.

Howard B. Comet, Mineola, and William E. Hellerstein, New York City, for appellant.

Mario Merola, Dist. Atty. (Howard Birnbach and Billie Manning, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 80 A.D.2d 770, 436 N.Y.S.2d 710, should be affirmed.

We agree with the contention of defendant that evidence subsequently admitted on trial cannot be used to support the determination of the suppression court denying his motion to suppress his oral confession; the propriety of the denial must be judged on the evidence before the suppression court. We conclude, however, that there was sufficient evidence before the suppression court to sustain the factual determination that defendant was duly given his constitutional preinterrogation warnings. Officer Collins testified that he had read defendant his "rights" from a blank police department arrest report form, a copy of which he did not have with him at the suppression hearing. On cross-examination Officer Collins stated that the "rights" to which he was referring were "Miranda warnings". In the absence of any proof whatsoever that such reading was or might have been deficient in some particular, the suppression court was warranted in drawing the inference that the constitutional preinterrogation warnings were adequately stated.

Defendant contends that testimony by Officer Collins--that the complainant failed to make any identification of defendant when he and she were conducting a surveillance and again when she viewed the first lineup on September 29--was inadmissible hearsay and should not have been admitted in evidence. No timely protest sufficient to preserve the issue for appellate review was registered (cf. People v. Liccione, 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333). As to the nonidentification at the surveillance, the only objection made, viewed most favorably to defendant, was that it was irrelevant; as to the failure of the complainant to make an identification at the first lineup, no objection was interposed. ^*

We have examined defendant's other contentions and find them to be without merit.

MEYER, Judge (dissenting).

Because I experience with respect to the majority's conclusion that the admissibility of nonidentification testimony was not preserved the same "vicarious feeling of strain" that Harris Steinberg experienced respect to this court's holding in People v. Cummins, 209 N.Y. 283, 103 N.E. 1128, ² I respectfully dissent.

In this rape and robbery case the victim testified that she knew her attackers from two or three previous occasions on which they had been to her apartment. She stated that her assailants had then come to talk with her about possible employment opportunities for her, including a position at the moving and storage company at which they were employed. On one of these occasions she was allegedly given a moving company business card.

In the course of investigating the incident, the police took the victim to the moving company in order to have her identify her attackers. A police officer testified on direct examination that on two occasions the victim viewed company employees at work, not including defendant or his codefendant, and identified no one. Similarly, there was evidence at trial, from both the victim and a police officer on direct examination, that the victim failed to identify anyone in a "blank lineup"--a lineup in which neither the defendant nor his codefendant were included.

Defendant objected to the admission of the negative identification testimony concerning the victim's observations at the moving company as well as the blank lineup. As to the latter, the following colloquy occurred when the People offered into evidence a photograph of that lineup:

"Mr. Noble I would just object to the first line-up being introduced at this time. I think it's irrelevant to the People's case.

"Mr. Schepis May I be heard?

"The Court: Let me understand, you're saying it's irrelevant in the People's case to show that a witness--

"Mrs. Neale Did not--

"The Court: Did not identify anybody and then subsequently did? How is that irrelevant?

"Mrs. Neale: But, none of the same parties--I take it back. Neither of the defendants were in the first line-up. This is a third party, entirely--who is in this line-up and not relevant to the People's case. The fact that she may have seen fifteen line-ups and not picked out anybody or don't--through pictures or photographs, is not relevant to the issue of identification.

"The Court: All right.

"Mr. Schepis: Yes. Judge, I think it's most relevant, most germane that this witness was shown a planned line-up in which the courts have found it's an appropriate procedure. This is a situation where the witness--witnesses' identification is shown to be reliable by the fact that she saw a line-up, which didn't contain these people and didn't pick anybody out. It's germane for that issue.

"The Court: Objection overruled."

Later in the trial the following occurred in the course of the direct examination of the police officer who accompanied the victim to the moving company:

"Q. All right, now, after--so--was there any identification of anyone made at the scene of the New York Moving Company by Mrs. Colon?

"A. No.

"Mr. Noble: Again, Your Honor, I object to the testimony about a prior identification proceeding.

"Mr. Schepis: There is no identification.

"The Court: He said there's no identification. He's clarifying the issue. There was no identification.

"Mr. Noble: Your Honor, my objection stands.

"The Court: All right.

"Q. And these defendants were not there, is that correct?

"A. Correct."

The majority now refuses to consider the propriety of admitting the evidence because defendant's attorney did not say the magic word "hearsay". Yet the evidence offered was inadmissible because it was both nonprobative and hearsay. It could become probative and admissible, if at all, only when the defense offered evidence intended to show, for example, that the victim was so eager to avenge the crimes committed upon her that she accused the first persons brought before her for viewing. At that point the moving company visit and blank lineup testimony would become probative and relevant, not because such testimony was any the less hearsay, but because it was hearsay which was admissible because it had become relevant to show consistency on the part of the victim in that she had not previously acted inconsistently as the defense claimed.

The victim's inability to identify anyone as her assailant from a group which did not include defendant was of even less probative value on the correctness of her ultimate identification of him than was the...