People v. Maldonado

• Decision Date: 25 April 2002
• Citation: 743 N.Y.S.2d 389,97 N.Y.2d 522,769 N.E.2d 1281
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT MALDONADO, Appellant.
• Court: New York Court of Appeals Court of Appeals

97 N.Y.2d 522

769 N.E.2d 1281

743 N.Y.S.2d 389

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT MALDONADO, Appellant.

Court of Appeals of the State of New York.

Argued March 14, 2002.

Decided April 25, 2002.

Office of the Appellate Defender, New York City (Joseph M. Nursey and Richard M. Greenberg of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Cynthia J. Pree, Joseph N. Ferdenzi and Elizabeth F. Bernhardt of counsel), for respondent.

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

OPINION OF THE COURT

ROSENBLATT, J.

Following a trial that turned on the issue of identity, defendant appeals from his convictions for attempted murder, attempted robbery and related crimes. He was arrested as an accomplice on the strength of a composite sketch created by the victim and a police artist. Defendant argues that the trial court committed reversible error by admitting the sketch into evidence. We agree and therefore reverse defendant's convictions and order a new trial.

While driving a livery cab in the Bronx, Younis Duopo was shot from behind by one of two African-American male passengers in an attempted robbery. Police recovered shell casings and fingerprints from the vehicle and apprehended the gunman, Marcos Poventud,¹ but not his accomplice. Seventeen days later, police arrested three Hispanic males for another Bronx livery cab shooting and recovered the gun used in that crime. Ballistics tests linked the gun to the Duopo shooting.

A New York Police Department (NYPD) detective obtained photographs of two of the three Hispanic assailants and showed them to Duopo, who ruled them out as suspects. Nearly two months later, Duopo met with an NYPD sketch artist who showed Duopo a series of photographs and created a composite sketch designed to reflect Duopo's recollection of the non-shooter assailant.

The detective showed the sketch to several of Poventud's family members and friends, one of whom referred the detective to defendant's home, believing that defendant matched the sketch. Armed with the sketch, the detective went to defendant's home and, concluding that defendant resembled the sketch, escorted him to the precinct, where Duopo picked him out of a photo array and a lineup. Police then charged defendant as the accomplice in the Duopo case—the appeal before us.

At trial, Duopo identified defendant as the non-shooter assailant. On cross-examination, however, when the defense showed Duopo a photograph of defendant's brother, Duopo twice identified the brother as the non-shooter assailant. Even though the defense did not assert or even insinuate that Duopo fabricated his testimony, the People offered the composite sketch into evidence to rehabilitate the impeached identification. At that point, the court sustained defendant's objection and disallowed the sketch.

On cross-examination, the detective stated that fingerprints found in Duopo's vehicle did not match defendant's, and that the detective did not show Duopo a picture of the third Hispanic assailant in the second shooting. The detective further testified that when he got to defendant's house, there were other males present (perhaps two in all), and that defendant's brother may have been one of them. The detective also stated that he escorted only defendant to the precinct.

At sidebar, the People again offered the composite sketch into evidence, arguing that in cross-examining the detective, the defense opened the door to the sketch by creating the impression that "Duopo's identification is incorrect and that the investigation is [a] fraud because the People did not look in the right direction." The People further asserted that the sketch would show that it "matche[d] Mr. Maldonado almost perfectly," and asked the court to "let the jury decide whether Mr. D[uo]po, in helping the artist to create [the sketch], knew what he was talking about when he identified [defendant]" in the lineup. Over defendant's objection, the court admitted the sketch into evidence without stating the basis for its ruling. Neither at that time nor in its concluding charge to the jury did the court give any limiting instruction as to the use or purpose of the sketch, nor did Duopo or the police artist identify the sketch or testify as to how it was created.

In its summation, the defense argued misidentification. In response, the People relied on Duopo's identification of defendant and emphasized the importance of the composite sketch, asserting that "[defendant] should have paid the sketch artist. People pay to get this done and he got it for free[.] You should ask for it to be signed by the artist who did it and hang it up in [your] room."

The jury convicted defendant of attempted murder, attempted robbery, assault and criminal possession of a weapon. The Appellate Division affirmed the convictions, concluding that the court properly admitted the sketch based on the prosecution's assertion that defendant created "a misapprehension as to the integrity of the police focus on him as a suspect" (283 AD2d 282, 282 [2001]). A Judge of this Court granted defendant leave to appeal, and we now reverse.

Police composite sketches are critical investigative tools. They winnow the class of suspects from the infinite down to a lesser number of people—still a great many—who resemble the sketch. If a witness has good observational skills and a retentive memory, along with the ability to work in concert with the artist or computer-image technician, there is a better chance that the sketch will resemble the offender and provide a useful lead.² But a witness is not a camera and a sketch artist is not a photographer. A composite sketch merely reflects the police artist's interpretation of someone else's description, based on the artist's synthesis of an infinite variety of facial features and configurations.³ Moreover, creating a composite sketch carries the "`potential suggestiveness of having a police artist interpret and possibly influence the perceptions of the witness'" (People v Robinson, 285 AD2d 478, 479,lv denied 96 NY2d 923 [2001]; People v Ross, 186 AD2d 1006,lv denied 81 NY2d 766 [1992]).⁴

In light of these difficulties, courts and juries have no way to determine reliably whether a witness helped generate a depiction that mirrors the offender or one that in reality looks nothing like the offender. Nevertheless, when a sketch forms the basis for an arrest, one thing is certain: if the sketch is right it will resemble the person accused, and if the sketch is wrong it will resemble the person accused. Indeed, the accused—innocent or guilty—is supposed to look like the sketch. When a jury examines a composite sketch, the temptation to inculpate or exonerate the defendant on the basis of the sketch is all but irresistible. A great many other people may also resemble the sketch, but only the defendant on trial sits before the jury. Despite any influence of the artist's interpretations or possibility that the sketch may be inaccurate, many jurors will be prone to conclude—if not exhorted to conclude—that because the defendant sitting before them matches the sketch, the defendant must be guilty. The prejudice of that circular logic is manifest and inescapable.

In the case before us, the People sought to admit the composite sketch to prove defendant's guilt and urged the jury to infer guilt based on his resemblance to the sketch. This Court has long considered composite sketches to be hearsay (see People v Coffey, 11 NY2d 142, 145 [1962]

; see also People v Peterson, 25 AD2d 437, 437-438 [1966]; People v Jennings, 23 AD2d 621 [1965]),⁵ and thus generally inadmissible against defendants to prove guilt (see e.g. Coffey at 145; see also People v Griffin, 29 NY2d 91, 93 [1971]).⁶ Mere mention at trial that an identifying witness cooperated with a police artist to produce a composite sketch is, under most circumstances, impermissibly prejudicial (see People v Lindsay, 42 NY2d 9, 12 [1977]; Griffin at 93; see also Prince, Richardson on Evidence § 8-803, at 673 [Farrell 11th ed]). This is especially true where, as here, the identity of the assailant is in dispute (see Griffin at 93) and the proof rests entirely on identification. A composite sketch "may not be admitted simply to counteract evidence * * * which casts doubt on the reliability of [a] complainant's identification" (People v Falterman, 74 AD2d 584, 584 [1980]; People v Ivey, 83 AD2d 788, 789 [1981]). When offered for that purpose, a composite sketch impermissibly bolsters the identifying witness's testimony and is therefore inadmissible (see People v Davis, 44 NY2d 269, 277-278 [1978]).

That is not to say that a composite sketch may never be received in evidence. As an exception to the hearsay rule, a composite sketch may be admissible as a prior consistent statement where the testimony of an identifying witness is assailed as a recent fabrication (see Coffey, 11 NY2d at 145-146

). In those circumstances, a sketch may be employed to confirm the identification with "proof of declarations of the same tenor before the motive to falsify existed" (id. at 145, quoting People v Singer, 300 NY 120, 123 [1949] [internal quotation marks omitted]). Under this well-settled principle, "recent fabrication" means "charging the witness not with mistake or confusion, but with making up a false story well after the event" (Davis, 44 NY2d at 277; see also Singer, 300 NY at 124; Barker and Alexander, Evidence in New York State and Federal Courts § 6:41, at 544-545 [2001 ed]). Accordingly, courts of this state have applied the hearsay rule to bar admission of composite sketches where there was no claim of recent fabrication (see Ivey, 83 AD2d at 789; Falterman, 74 AD2d at 584; see also Lindsay, 42 NY2d at 12 [excluding testimony that a witness helped police construct a composite sketch absent allegation that the identification was a recent fabrication]).⁷

In the case before us, ...