People v. Malphurs

• Decision Date: 13 May 1985
• Citation: 111 A.D.2d 266,489 N.Y.S.2d 102
• Parties: The PEOPLE, etc., Respondent, v. Mark MALPHURS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 102

489 N.Y.S.2d 102

111 A.D.2d 266

The PEOPLE, etc., Respondent, v. Mark MALPHURS, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 13, 1985.

William E. Hellerstein, New York City (Shirley Werner Kornreich, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Annette Cohen, of counsel), for respondent.

Before BRACKEN, J.P., and NIEHOFF, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 11, 1979, convicting him of rape in the first degree and robbery in the first degree, upon a jury verdict, and sentencing him to concurrent, indeterminate terms of imprisonment of six and two-thirds to 20 years.

Judgment affirmed.

On July 5, 1977, at approximately 10:30 P.M., two males forcibly entered the complainant's two-door car while it was stopped at a red traffic light. The first male to enter the car from the passenger door held a knife to the complainant's throat while his companion climbed into the back seat. The complainant's purse was handed out of the car to a third male whose face the complainant never saw. After the complainant drove the car for one or two minutes, she was directed to stop. The knife-wielding assailant then ordered her to accompany him into the back seat while his companion climbed into the driver's seat. After a 5 or 10-minute drive, the car came to a stop in a common driveway where the victim was raped by the knife-wielding assailant and her watch taken by the driver. This incident lasted approximately 20 minutes. The rapist then escorted the victim outside the car. When he re-entered the vehicle, the perpetrators drove away with her car. Although it was evening, the victim's observation of the perpetrators was aided by the dome light of the car which illuminated the interior when the two men first entered the vehicle and when she got out of the car. Also, when the car was parked in the common driveway, light filtered through the rear car window from a garage.

On July 15, 1977, the complainant identified defendant as the rapist from a photographic array consisting of six photographs of males similar in age and appearance. Thereafter, the complainant viewed at least 100 projections on a Miraquic computer and identified only defendant's picture. Defendant was apprehended three months later on an unrelated charge and, on October 26, 1977, the complainant identified defendant as the rapist from a six-man lineup conducted at Rikers Island. The participants in the lineup were similar in age and appearance. When asked at the lineup from where she recognized defendant, complainant admitted that she paused before answering the question and stated, in substance, that she wanted to be sure that she recognized defendant from the night of the crime and not the photograph. She stood there until she was sure and then responded: "From the night I was raped. He raped me".

Defendant contends that the complainant's lineup and in-court identifications should have been suppressed as the tainted product of impermissibly suggestive police conduct, i.e., showing the complainant, within a short time period two pictorial displays, each of which contained defendant's picture. Additionally, defendant argues that the lineup identification should be suppressed because one of the detectives present during the lineup badgered the complainant into responding that she recognized defendant from the night of the rape. With respect to the latter contention, we do not find the detective's instructions to the victim, that she should not be afraid, that she should take her time and that she would have to disclose from where she recognized the defendant, rose to the level of badgering.

We are cognizant that the danger of misidentification will be increased if the police show a witness pictures of several persons among which the photograph of a single individual resembling the perpetrator recurs. When a misidentification occurs, the witness is apt to retain in his memory the image of the photograph rather than the person actually seen, reducing the trustworthiness of a subsequent lineup or courtroom identification (Simmons v. United States, 390 U.S. 377, 383-384, 88 S.Ct. 967, 970-971, 19 L.Ed.2d 1247). However, we conclude that the photographic identification procedures employed here were not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" (see Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971). The complainant was sufficiently certain that the photograph of defendant which she selected from the photographic array, without any police prompting, depicted the man who raped her. Defendant does not claim that there was anything distinctive in the makeup of the array to suggest his photograph. Thereafter, she viewed cassettes on a Miraquic computer. The computer projected onto a screen approximately 100 pictures of men in its data bank who had previously been arrested for similar offenses and/or match the complainant's general description of the perpetrator. The complainant identified only defendant's picture. To be distinguished are situations where the witness tentatively selects more than one photograph of men resembling the perpetrator and, of the chosen photographs, only the defendant's picture is repeated in a second photographic array containing a small number of photographs not previously shown (see People v. Hall, 81 A.D.2d 644, 438 N.Y.S.2d 148; People v. Tindal, 69 A.D.2d 58, 418 N.Y.S.2d 815).

Moreover, even if we were of the view that the identification procedures were impermissibly suggestive, it would not require the suppression of the victim's in-court identification. The People established by clear and convincing evidence at the suppression hearing that the proffered in-court identification had an independent origin based on the victim's ample opportunity to observe the rapist in close quarters during the commission of the crime (see People v. Parks, 59 A.D.2d 543, 397 N.Y.S.2d 128).

Defendant next contends that the trial evidence failed to establish the rapist's identity beyond a reasonable doubt. Viewing the evidence in the light most favorable to the People (People v. Lipsky, 57 N.Y.2d 560, 563, 457 N.Y.S.2d 451, 443 N.E.2d 925; People v. Chamberlain, 96 A.D.2d 959, 960, 466 N.Y.S.2d 860), and in consideration of the foregoing discussion, we find the prosecution made a prima facie showing that the victim's identification testimony was reliable. It was thus within the jury's province to assess the weight to be accorded her testimony (see People v. Ganci, 27 N.Y.2d 418, 318 N.Y.S.2d 484, 267 N.E.2d 263, cert. denied, 402 U.S. 924, 91 S.Ct. 1398, 28 L.Ed.2d 663; People v. Seppi, 221 N.Y. 62, 68, 116 N.E. 793; People v. Chamberlain, supra, 96 A.D.2d at 960, 466 N.Y.S.2d 860).

We also reject defendant's contention that it was error for the trial court to refuse to conduct a Sandoval hearing with respect to the prior vicious and immoral acts intended to be relied upon by the prosecution in impeaching him. In order to obtain an advance ruling limiting the scope of cross-examination, the burden is upon the defendant to inform the court of the prior misconduct which might unfairly affect him as a witness in his own behalf (see People v. Poole, 52 A.D.2d 1010, 383 N.Y.S.2d 688; People v. Ortero, 75 A.D.2d 168, 174, 428 N.Y.S.2d 965; see also, People v. Duffy, 36 N.Y.2d 258, 263, 367 N.Y.S.2d 236, 326 N.E.2d 804, cert. denied 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88; People v. Sandoval, 34 N.Y.2d 371, 378, 357 N.Y.S.2d 849, 314 N.E.2d 413). Since defendant refused to disclose any prior vicious or immoral acts, the court correctly declined to furnish an advance ruling as to the admissibility of such acts for purposes of cross-examination. Defendant also asserts that the trial court's ruling that the prosecutor could cross-examine defendant as to his previous use of aliases was erroneous. It would be inappropriate for a trial court to permit the prosecutor to question a defendant concerning his use of aliases on prior occasions unrelated to the crimes charged (see People v. Jimenez, 79 A.D.2d 1012, 434 N.Y.S.2d 251, mod on the other grounds 55 N.Y.2d 895, 449 N.Y.S.2d 22, 433 N.E.2d 1270, especially aliases used in connection with prior convictions barred by the trial court's Sandoval ruling (see People v. Bannerman, 110 A.D.2d 706, 488 N.Y.S.2d 192 People v. Evans, 88 A.D.2d 604, 449 N.Y.S.2d 762). However, since the arrest report in the instant case noted the defendant's use of an alias in connection with his arrest for raping and robbing the complainant, the trial court's intention undoubtedly was to permit a cross-examination of defendant limited to the alias used in connection with his arrest in this matter. This ruling was not erroneous (see People v. Colmey, 117 A.D. 462, 102 N.Y.S. 714, affd. 188 N.Y. 573, 80 N.E. 1115).

Defendant further contends that the trial court erred in refusing to permit him to introduce in evidence Louis Wilson, the man accused of being the second assailant, solely as a physical exhibit rather than to call him as a witness. Defendant additionally argues that the prejudicial effect of disallowing Wilson's use as an exhibit was compounded by the trial court's erroneous ruling that if Wilson intended to invoke his Fifth Amendment right against self-incrimination in response to inquiries, as Wilson's counsel had informed the court, Wilson would have to do so in front of the jury. We disagree with defendant's contentions.

In describing her assailants to a police officer shortly after the crime, the complainant had stated, inter alia, that the rapist was shorter than the second assailant and that the latter had a mole. To show that the complainant was unreliable as an identification witness, defendant sought to use Wilson as a physical exhibit to allow the...