People v. Jackson

• Decision Date: 17 October 2002
• Citation: 750 N.Y.S.2d 561,780 N.E.2d 162,98 N.Y.2d 555
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RONALD JACKSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

98 N.Y.2d 555

780 N.E.2d 162

750 N.Y.S.2d 561

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RONALD JACKSON, Appellant.

Court of Appeals of the State of New York.

Argued September 11, 2002.

Decided October 17, 2002.

Center for Appellate Litigation, New York City (Bruce D. Austern and Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Ellen Sue Handman and Carol A. Remer-Smith of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

WESLEY, J.

Defendant Ronald Jackson's convictions in this case stem from an armed robbery. The central issue before us is the effect of the post-Wade hearing loss of a lineup photograph on defendant's appeal of the hearing court's determination that the lineup was not unduly suggestive.

During the early morning hours of August 28, 1998 defendant and codefendant Sean Smallwood got out of a red vehicle and approached two men at 38th Street between Fifth and Sixth Avenues in midtown Manhattan. Defendant pointed a gun at one of the men and demanded his chain. When the man took flight defendant pursued him and then shot him in the arm. Meanwhile, Smallwood held his gun to the second man and demanded his chain and wallet. The second man handed over his chain, but threw his wallet at Smallwood and ran when he heard defendant fire his weapon.

Police responded to the scene and spoke with witnesses who described the vehicle driven by the perpetrators. Tracing the license plates to Smallwood's mother, the police went to her home and found the vehicle with three men inside. Defendant was seated on the curb talking to the men through the car's open door. After the police removed the passengers from the vehicle, they recovered a loaded gun from the back seat; an additional loaded gun was found on the ground under the car near the curb where defendant had been seated. Defendant was taken into custody. Smallwood was arrested inside his mother's home shortly thereafter. While at the hospital, the shooting victim described his assailant as an African-American male, "five-foot-nine to five-foot-ten" inches tall, weighing about 160 pounds with short hair. The assailant's age was not mentioned in the description.

A police detective who had seen defendant and noted his age, height and weight arranged defendant's lineup, selecting four lineup fillers of similar size and skin tone. Defendant selected his own lineup position, and, in order to lessen a slight height differential, the fillers were seated around him. The detective photographed the lineup and made a written notation indicating that the four fillers were of similar body size and that their ages were 29, 36, 38 and 41 years old.

The victim identified defendant in the lineup as his assailant. Defendant and Smallwood were indicted on two counts each of first-degree robbery and attempted first-degree robbery, and a single count of second-degree assault. Separate related charges were also brought against defendant for attempted second-degree murder, first-degree criminal use of a firearm, second-degree criminal possession of a weapon and second-degree assault.

Before trial defendant moved to suppress the identification testimony, arguing that the lineup was unduly suggestive because the lineup fillers were "much, much older." Notably, defendant (who was 19) mentioned only a numerical age difference during the Wade hearing, and said nothing about the physical appearance of those pictured in the lineup photograph. After hearing the testimony of the detective who supervised the lineup and the parties' arguments, the court denied the motion based on its own examination of the photograph.

During trial, the same detective testified that the photograph had been misplaced. Defendant did not move to reopen the Wade hearing. Without objection, a photocopy of the lineup photograph was admitted into evidence and used by defense counsel in summation to question the accuracy of the victim's identification of defendant. The jury convicted defendant on each of the robbery, assault and weapons counts, but acquitted him of attempted murder. The Appellate Division affirmed the conviction, determining in pertinent part that defendant's motion to suppress identification evidence was properly denied.

A Judge of this Court granted leave to appeal and we now affirm.

Identification testimony based on pretrial lineups is properly admitted unless it is shown that the procedure was unduly suggestive (see People v Chipp, 75 NY2d 327, 335 [1990],

cert denied 498 US 833 [1990]). Although the People have the initial burden of establishing the reasonableness of the police conduct in a pretrial identification procedure, the defendant bears the ultimate burden of proving that the procedure was unduly suggestive. Without such a showing on the part of the defendant, there is neither a need for nor a burden on the People "to demonstrate that a source independent of the pretrial identification procedure exists for the witness's in-court identification" (id.). In addition, a Wade hearing dealing with the propriety of a lineup identification involves mixed questions of law and fact (see, People v Evans, 94 NY2d 499, 505 [2000]; People v Wilson, 64 NY2d 634, 636 [1984]). Therefore, the determination of the hearing court, undisturbed by the Appellate Division and supported by evidence in the record, is beyond this Court's review (see Chipp, 75 NY2d at 336; Wilson, 64 NY2d at 636).

Here, there is ample...