People v. Hale

• Decision Date: 08 December 1988
• Citation: 535 N.Y.S.2d 699,142 A.D.2d 172
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlton HALE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 699

535 N.Y.S.2d 699

142 A.D.2d 172

The PEOPLE of the State of New York, Respondent, v. Carlton HALE, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 8, 1988.

Thomas E. Bohan, Brooklyn, of counsel (Lisa Feiner with him on the brief; Robert M. Morgenthau, New York City, attorney), for respondent.

Stephen L. Holtz, New York City, for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, MILONAS, ROSENBERGER and WALLACH, JJ.

WALLACH, Justice.

Shortly after being indicted for robbery, defendant made an omnibus motion seeking, inter alia, suppression of "all evidence of any pre-trial identification procedures" on the ground that there had been "at least 3 separate line-ups". Characterizing this as a "request for a Wade hearing", the People opposed "since defense counsel has failed to state sufficient facts to justify such a hearing." Although the court's decision is not included in the record, we are told by the parties that the motion was denied, and we assume that it was for the reasons urged by the People. Certainly, there is no readily apparent reason why the reliability of an identification should be suspect, as a matter of law, simply because more than one lineup was conducted (see, CPL 710.60[3][b] ).

At trial, defendant, who took the stand, denied any involvement in the crime, suggesting that his mere presence at the crime scene, a subway platform, may have caused the victim and his companion to misidentify him as one of the at least six persons who attacked the victim in the course of robbing him of jewelry that he was wearing. On the question of identification the People, for their part, had the victim and his companion identify defendant in court, but also placed considerable reliance, especially in summation, on the station house identifications made of defendant by these two eyewitnesses about three hours after the crime. This station house viewing took place after the victim and his companion had been informed by the police, while en route to the station house, that defendant, who was sitting alone in a "holding pen" or cell at the time of the viewing, was a suspect. Other evidence of guilt adduced at trial included, most notably, defendant's possession, when apprehended, of jewelry identified as the avails of the robbery by the victim at the station house immediately before he and his companion were together taken to the holding pen to view defendant.

Defendant appeals his conviction on the ground that a Wade hearing was essential to a fair trial, and that he was deprived of a Wade hearing because of his attorney's ineffectiveness. The People acknowledge that defendant's attorney made a mistake in asserting that defendant was identified in three lineups and not a showup, that the attorney knew, or should have known, that it was in a showup that his client was identified since he was told as much in the People's Voluntary Disclosure Statement, and that defendant would likely have been granted a Wade hearing had the facts surrounding the showup been correctly stated in his omnibus motion. Nevertheless, the People argue that this mistake of counsel does not warrant a reversal of defendant's conviction since the attorney's performance was otherwise competent, and, when viewed as a whole, afforded defendant a meaningful representation--in other words, that a Wade hearing was not essential to a meaningful representation. We disagree.

Conceivably, a Wade hearing could have resulted in suppression of not only the showup, but also of any in-court identifications the People might have wished to make, on the ground that the latter would be tainted by the former (People v. Riley, 70 N.Y.2d 523, 531-532, 522 N.Y.S.2d 842, 517 N.E.2d 520, and cases cited therein). Thus, to say, as the People do, that counsel's error and its consequence, no Wade hearing, were not meaningful is to imply either that defendant would have been convicted even if no eyewitness identification had been made at trial, or that a Wade hearing, had one been conducted, would not have resulted in suppression of the eyewitness identifications that were made at trial. The People do make the latter argument, but we find it unpersuasive. Their point, in this respect, is that when pretrial proceedings were pending in this case, the admissibility of station house showups was judged under a "totality of circumstances" standard (citing People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379) much more receptive to such evidence than the "per se" standard announced by the Court of Appeals after defendant's trial (citing ...