People v. Gray
| Decision Date | 10 October 1989 |
| Citation | 545 N.Y.S.2d 945,154 A.D.2d 478 |
| Parties | The PEOPLE, etc., Respondent, v. Michael GRAY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Elizabeth J. Vila and Steven Statsinger, of counsel; Ethan Klingsberg, on the brief), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Victor Barall and Nancy F. Talcott, of counsel), for respondent.
Before BROWN, J.P., and EIBER, KOOPER and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered July 16, 1984, convicting him of attempted murder in the first degree (two counts), aggravated assault upon a police officer, robbery in the first degree (two counts) and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
According to the trial testimony, on April 10, 1982, the defendant and an accomplice robbed David Gutzman, a self- described gypsy cab driver, at gunpoint. After relieving Gutzman of cash and jewelry, they directed Gutzman to drive to his home in search of more cash. As they proceeded toward his home Gutzman saw a police patrol car and crashed into it in an attempt to abort the robbery. The defendant and his accomplice ran from the cab and Gutzman yelled to the police that they had just robbed him. Police Officer Michael Maillie gave chase on foot, while Sergeant Edward Forsyth sent out a radio transmission and followed in the patrol car. Maillie observed the defendant and his accomplice emerge from a stairwell and then the defendant fired two shots at him. One shot hit Maillie in the leg causing him to collapse. The defendant jumped over Maillie and ran toward Forsyth firing approximately seven shots at him. Since he had no cover, Forsyth dropped to the ground and the defendant then fired two more shots at him, missing both times.
At the pretrial suppression hearing, it was elicited that, during a hospital emergency room interview immediately following the shooting, Officer Maillie told Detective Raymond Apo that he would be able to identify the perpetrators if he saw them again. He said the shooter was clad in a light colored jacket and that the accomplice wore "all dark" clothing. Apo's questioning was then curtailed as the physicians began to provide medical treatment. The following day, Maillie told Apo that the shooter was a light-skinned black male, 5 feet 10 inches to 6 feet tall, weighing 150 pounds, and 25 to 30 years old. The other assailant was a dark-skinned black male, 6 feet to 6 feet 1 inch tall, weighing 165 pounds, 22 to 26 years old, and larger than the shooter. At that time, the defendant was not a suspect. Maillie viewed thousands of photographs after his release from the hospital, but was never shown a picture of the defendant before he was hypnotized in May 1982 and never identified anyone as the shooter.
Detective John Gaspar, a hypnotic investigator assigned to the Hypnosis Unit since 1981, testified that on May 18, 1982, at approximately 1:00 P.M. Officer Maillie arrived at the hypnosis unit at 1 Police Plaza with Detective Cordero. Gaspar had no information regarding the case prior to that day. Before speaking with Maillie, he was told by Cordero of the time and place of the incident and was informed that a description of the perpetrators was being sought. Cordero did not give Gaspar any information as to the prior descriptions given by Maillie. Cordero left the interview room before Maillie entered and Gaspar spoke alone with Maillie. Maillie initially told Gaspar that there were two individuals but that only one had fired upon him. He stated that the shooter was eight to ten feet away and was 5 feet 10 inches to 6 feet tall with a slim build and wore a beige suit jacket. Maillie also described the defendant's accomplice.
Following Gaspar's administration of a technique described as "progressive relaxation," Maillie reiterated his previous description of the shooter and added that he had short hair and that he might have had a moustache. Gaspar explained that this interview was recorded as a safeguard and that the interview room was very "sterile" to prevent any suggestiveness. The only information Gaspar had was what was given to him by Maillie prior to the "progressive relaxation" exercise. Additionally the questioning was very neutral and general to prevent any suggestiveness. Maillie affirmed that he was fully conscious during the interview with Gaspar and explained that the hypnotic session enhanced his concentration thus enabling him to recall the moustache and short cropped hair. Other than those two details, Maillie insisted that his memory had not been increased.
The hearing court, noting the danger of suggestibility inherent in hypnosis, found that there were no suggestions made and that the incidents recalled by Maillie were essentially the same as he recalled them prior to the session, the only exception being his recollection of the moustache and the short hair. It concluded that Maillie was fully conscious during the session and that the two additional details came from Maillie's heightened consciousness during the session. The defense counsel excepted to this ruling. However, he did not raise any issue with respect to the propriety of the subsequent lineup and photographic identifications of the defendant made by Gutzman and Maillie.
Initially, we note that the defendant has failed to preserve for appellate review his claim that the court should have conducted a Wade hearing to determine the propriety of the lineup identifications. Prior to trial, the defendant moved to dismiss Maillie's lineup identification and in-court identification of the defendant based upon the fact that these identifications were made after Maillie had been hypnotized. At the outset of the suppression hearing, the prosecutor told the court that he was ready to proceed and apprised the court and counsel of the witnesses he was prepared to call to testify on the issue of the claimed suggestibility of the hypnosis. There was no mention of the propriety of the composition of the lineups and,...
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