People v. Logan

• Decision Date: 01 July 1969
• Citation: 303 N.Y.S.2d 353,25 N.Y.2d 184,250 N.E.2d 454
• Parties: , 250 N.E.2d 454 The PEOPLE of the State of New York, Respondent, v. Howard Allen LOGAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 353

303 N.Y.S.2d 353

25 N.Y.2d 184, 250 N.E.2d 454

The PEOPLE of the State of New York, Respondent, v. Howard Allen LOGAN, Appellant.

Court of Appeals of New York.

July 1, 1969.

Herbert A. Lyon, Kew Gardens, and Howard Allen Logan, pro se, for appellant.

Thomas J. Mackell, Dist. Atty. (Spiros A. Tsimbinos, Kew Gardens, of counsel), for respondent.

BREITEL, Judge.

Following a jury trial in Supreme Court, Queens County, the defendant was on January 12, 1967 convicted of robbery in the first degree and possession of a weapon as a felony. He was sentenced to imprisonment for 15 to 20 years on the robbery count; sentence was suspended on the weapon count. The Appellate Division unanimously affirmed, without opinion.

The main issue on defendant's appeal is whether the pretrial identification of the defendant was so unfair as to be violative of due process. Since the identification antedated United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the inquiry is whether 'the confrontation * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that (defendant) was denied due process of law' (Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199; People v. Rivera, 22 N.Y.2d 453, 293 N.Y.S.2d 271, 239 N.E.2d 873; People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Brown, 20 N.Y.2d 238, 282 N.Y.S.2d 497, 229 N.E.2d 192). Defendant also contends that guilt was not established beyond a reasonable doubt and that the trial court committed a number of trial errors.

The judgment should be affirmed. The prompt identification by one of the witnesses shortly after the criminal event accorded with desirable police practice. Neither this identification nor that by the other eyewitness was the result of a suggestive procedure but instead emanated from the identifying witness. The proof in the case is overwhelming and the alleged trial errors were not consequential or prejudicial.

On October 22, 1964, at approximately 5 or 10 minutes after noon, a loan company office in Queens County was robbed of $579 by an armed lone male.

Regis Murtha, loan manager, George Wise, assistant loan manager, and Joanne Mason, a secretary, were present in the office when a man entered carrying a brown zippered briefcase, open at one end. He was wearing a flat hat, light tan jacket, dark tan corduroy trousers and 'mirror-type' sunglasses. Murtha, thinking the man to be a customer, approached him from behind the counter. When Murtha came within two or three feet of him the robber withdrew 'a nickel-plated 45--an Army type 45' from his briefcase and said: 'I am only going to take this out once. I am going to put it right back in.' 'This is a hold-up. Give me your money and nobody will get hurt.'

Murtha then instructed Miss Mason to give the money to the robber, who put it in his coat pocket and stated: 'Get to the back of the office. Give me a chance to get out of here and I will be on my way.' He then fled.

Mr. Wise had been on the telephone in the rear of the office. He noticed the robber at the counter, saw Miss Mason give him money, and watched him walk out the front door as Murtha and Miss Mason came to the rear. Upon learning of the robbery Wise ran outside, and saw the robber walking down the street. Wise entered a neighboring store seeking, unsuccessfully, assistance. When he came out of the store, the robber had disappeared around a corner. Wise turned the corner, saw the robber 10 or 15 feet away and called, 'hey you.' Receiving no response, Wise called again. This time the robber turned and Wise observed that he was not wearing any sunglasses. He then crossed the street, got into a parked automobile and drove away. Wise, by this time only two feet from the car, noted that it was a 1959 or 1960 black Chevrolet convertible, license plate number QC2250.

Murtha had immediately after the event telephoned the police to report the robbery. He gave the following description of the robber: 'A man above five-ten, six feet, neatly dressed, light-skinned colored person.' The police arrived at the crime scene and Murtha, Wise, and Mason, 'all together' described the robber by a description similar to the telephoned one. The police in short order ascertained that the owner of the Chevrolet, Miss Elizabeth Spraggins, had the day before loaned the car to the defendant who was to make minor repairs. Approximately one hour after the robbery, Patrolman Joseph Lawler arrested defendant at his home. Following a search, $327 in paper money in denominations of twenties, tens, fives and singles were discovered in defendant's pocket. After defendant was taken to the police station another search disclosed 'Keys and registration to a 1960 Chevrolet, registration QC2250'. Six blocks from the loan company office Patrolman Lawler found the automobile, parked and locked. He removed a brown zippered briefcase, containing a 'Nickel-plated', '45-calibre automatic pistol.' The pistol was operable and loaded with seven rounds of ammunition.

Following these developments, Murtha was escorted to the police station by two policemen who informed him: 'We have a suspect we think might be the man who committed the robbery.'

At the police station Murtha was taken to a squad room containing about 10 persons: 4 or 5 uniformed police officers; three Negroes, one of whom Murtha knew to be a police officer, the defendant, and another imprisoned in a cage on the other side of the room from where defendant was standing with a uniformed police officer; and a group of 3 or 4 persons, including a local businessman known to Murtha. Murtha had almost crossed the room when '(a)n officer asked me if I saw anyone in the room that looked like the suspect, the robber; and I looked around and I saw Logan standing over to one side, and I said, 'That is the man there. " The defendant no longer had a jacket on but was wearing the 'same brown corduroy trousers.' No one placed a hand on the defendant nor placed a coat or sunglasses on him. On a desk, 5 or 10 feet from the defendant, was a gun which Murtha was 'certain' was the one used during the robbery. Murtha remained for approximately 30 to 45 minutes in this room with the defendant. Neither Mason nor Wise was brought to the police station.

Murtha made an in-court identification of the defendant, noting, however, that: 'He had a moustache at the time he held us up. Today, I see he doesn't have one.' He also testified that at the time of the robbery he had been face to face with defendant for 3 to 5 minutes in a well-lighted area 6 feet from a window. Murtha did not recall whether, on reporting the robbery, he had informed the police that defendant had a moustache.

At trial Miss Mason described the robber as 'tall, around six feet, medium build, light-skinned colored Negro man. He wore a hat, like a sports cap. He had sunglasses that he could see through but you couldn't see through those. He had a jacket on and under his left arm he was carrying a brown briefcase.' She had failed to notice whether the robber had a moustache or not and she could not 'positively' identify anyone in the courtroom.

An in-court identification of defendant was made by Wise, who testified that on the day of the robbery the defendant had worn a moustache. It is unexplained why, on the day of the robbery, Wise had not been asked to identify the defendant. However, in May, 1966 Wise saw the defendant in the spectators' area of a courtroom in the Criminal Courts Building when the trial had been scheduled and Wise had been requested to appear. The case was adjourned and Wise was notified to be present on September 19. As he entered the courtroom in September he again saw the defendant, this time in the corridor. The case was again adjourned. Wise testified both on direct and cross-examination to these prior identifications.

The defense was alibi, namely, that defendant was at his bank, a dry cleaners, and at his aunt's house at or about the time in question. A bank manager identified the defendant's deposit slip which had been submitted on the day of the robbery. A taxi driver stated he picked defendant up near the bank at 11:45 A.M. The operator of a dry cleaning store testified that defendant came to her store to pick up some clothes at 12 noon, and defendant's aunt testified that he brought her clothes from the dry cleaners between 11:30 A.M. and 12:30 P.M. The crime, it will be recalled, occurred 5 or 10 minutes past noon. Defendant did not testify.

It is urged that the pretrial identification at the police station was so unnecessarily suggestive and conducive to an erroneous identification that it violated due process of law (Stovall v. Denno, Supra). Therefore, the necessary corollary is that the in-court identification by Murtha should not have been permitted without a showing by the People upon 'clear and convincing evidence' that it was based on observations of the defendant other than the improper pretrial identification (People v. Ballott, Supra, 20 N.Y.2d at pp. 606--607, 286 N.Y.S.2d at pp. 6--7, 233 N.E.2d at pp. 106--107). DB (1) The test to be used in determining the propriety of the pretrial identification is one of 'fairness' (Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402). This 'depends on the totality of the circumstances surrounding it' (Stovall v. Denno, Supra, at p. 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199).

This court in People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103, Supra condemned a pretrial identification held one year after the commission of a robbery. The victim, a white person, who was described as having seen the robber, 'a Negro, wearing a hat and a heavy coat but for a few minutes during a frightening and upsetting episode' (at p. 607, 286 N.Y.S.2d at p. 7, 233 N.E.2d at p. 107), had been permitted to...