People v. Marshall
| Decision Date | 17 December 2015 |
| Docket Number | No. 195,195 |
| Citation | 2015 N.Y. Slip Op. 09313,25 N.Y.S.3d 58,26 N.Y.3d 495,45 N.E.3d 954 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kaity MARSHALL, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Seymour W. James, Jr., The Legal Aid Society, New York City (Richard Joselson of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Camille O'Hara Gillespie, Diane R. Eisner and Leonard Joblove of counsel), for respondent.
Kramer Levin Naftalis & Frankel LLP, New York City (David S. Frankel and Sarah C. White of counsel), and The Innocence Project, Inc., New York City (Barry C. Scheck and Karen A. Newirth of counsel), for Innocence Project, Inc., amicus curiae.
Defendant claims that the trial court, relying on People v. Herner, 85 N.Y.2d 877, 626 N.Y.S.2d 54, 649 N.E.2d 1198 (1995), and affirmed by the Appellate Term, improperly denied her request for a Wade hearing to determine the suggestiveness of a prosecutor's pretrial display to complainant of defendant's arrest photograph, on the ground that the display was trial preparation, and not an identification procedure. Defendant further argues that we should repudiate a practice that has developed post-Herner into an exception to Criminal Procedure Law § 710.30.
Upon consideration of the applicable statutory mandates and case law, as well as the concerns over mistaken identification and the potential risk of wrongful convictions based on eyewitness error, we conclude that the trial-preparation exception and the procedural mechanism designed to determine its application to any particular case, the so-called Herner hearing, serve as an obstacle to judicial scrutiny of potentially unconstitutionally suggestive identification procedures. The Herner procedure is, furthermore, unnecessary, because a Wade hearing adequately ensures against the admission of an unreliable identification.
We further conclude that the trial court here improperly denied defendant's requests for a Wade hearing, but such error was harmless as there is record support for the trial court's alternative finding of an independent source for complainant's in-court identification of defendant.
Therefore, Appellate Term should be affirmed.
The People charged defendant Kaity Marshall with several offenses arising from an assault of a passenger on a New York
City bus. Initially, the police were unable to locate a suspect, despite descriptions of the assailant from the complainant and the bus driver. Then, two months after the incident, complainant was at a hospital pharmacy when, by mere happenstance, she saw defendant and recognized her. Complainant immediately called the police, and identified defendant as the assailant. Defendant was arrested at the hospital and later charged with assault in the third degree (Penal Law § 120.00[1] ), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2 ] ), menacing in the second degree and third degree (Penal Law §§ 120.14, 120.15 ), and harassment in the second degree (Penal Law § 240.26[1] ).
Eighteen months after the bus incident, and the day before a scheduled court appearance on defendant's criminal case, the prosecutor met with complainant and showed her a photograph of defendant taken on the day of her arrest. In court the following day, the prosecutor informed the judge and defense counsel that as part of trial preparation he had shown complainant the photograph in order to aid him in understanding her description of defendant's hairstyles on the day of the attack and when she was arrested.
As part of defendant's omnibus motion, and in response to the prosecutor's disclosure, defense counsel requested a hearing pursuant to Herner, 85 N.Y.2d at 879, 626 N.Y.S.2d 54, 649 N.E.2d 1198 to establish that the photograph display constituted an identification procedure under CPL 710.30, necessitating a Wade hearing to determine whether the display was unduly suggestive. In support of the motion, counsel argued that the photograph display likely tainted complainant's anticipated in-court identification, “thus transforming [complainant's] initial identification into one that is now certain based on a suggestive identification procedure,” which therefore required preclusion of the identification made at the hospital. Counsel also requested to call as a witness the Assistant District Attorney (ADA) who displayed the photograph to complainant.
The court granted the hearing but denied the request to call the ADA. Instead, the sole witness at the hearing was complainant, who testified not only about the meeting with the ADA, but also about the attack, the assailant's appearance and her identification of defendant at the hospital. In recounting the incident, complainant asserted that she took a good look at the assailant so that she would recognize her if she ever saw her again. She described the assailant as a black woman, between
20 and 40 years of age, who, as compared to herself, had a straighter face, a slightly larger nose and a much darker complexion. Complainant further testified that the next time she saw the assailant was by chance, at a hospital, two months after the incident. She stated that she had no doubt that this woman was the same person who had attacked her on the bus.
In response to questions about her meeting with the ADA, complainant testified that he showed her a photograph and asked her if she knew the picture, that the photograph was blurry and that she had only glanced at it. She also stated that the photograph did not change her mind about her memory of the attacker. The People did not submit the photograph into evidence. On cross-examination, complainant stated that she had not seen a photograph of the woman who was arrested, had not previously seen the photograph shown to her at the meeting with the ADA, and that she did not remember the ADA asking about defendant's hairstyle, or for a description of the assailant.
In her post-hearing submission, defense counsel again argued that the photograph display was a suggestive identification procedure that should be tested further in a Wade hearing, and that defendant should be permitted to call as a witness the ADA who interviewed complainant. The People responded that the display was trial preparation, and, regardless, they did not intend to offer the photograph into evidence because complainant's pre-arrest hospital identification of defendant served as an untainted basis for an in-court identification.
The court rejected defendant's arguments and determined that the photograph display was part of trial preparation. The court also concluded that, given complainant's prior identification of defendant at the hospital, her “brief viewing of the blurry photo [would] not taint an in-court identification of Defendant.”
At defendant's nonjury trial, the People relied heavily on eyewitness testimony from complainant and the bus driver. Complainant repeated much of the testimony from the pretrial hearing. She again recounted that one afternoon she was seated riding a city bus in Brooklyn with her daughter when another female passenger, whom complainant had never seen before, stood in front of her to look out the window and stepped on her foot. After the woman sat down, complainant remarked
to her that she had failed to apologize. The woman then stood up and punched complainant repeatedly in the face, nose and head, giving complainant a bloody nose and injuring her left eye. During the physical altercation, complainant attempted to defend herself, but the woman pulled out a knife and threatened to kill her. Several passengers were screaming, causing the bus driver to look in the rearview mirror where he saw the woman, who was unknown to him, and complainant, whom he recognized as a previous passenger. He again briefly saw the assailant, now wearing sunglasses, as she exited the bus when it reached the next stop.
Complainant made an in-court identification of defendant as her assailant. Complainant also testified as to her out-of-court, spontaneous identification of defendant at the hospital. Complainant made no reference to any other pretrial identification and did not testify about the photograph display. The People did not submit the photograph into evidence.
The People's other eyewitness was the bus driver, who made an in-court identification of defendant as the woman he observed punch complainant in the face. He testified that during the altercation he took a good look at defendant's face, and described for the court the attacker's race, approximate age, weight and clothing.
Defendant testified that she was with her mother at a laundromat at the time of the attack. She submitted into evidence her cellular telephone records, which showed that calls were made and text messages were sent from her phone at the approximate time of the incident. The records indicated that two of these text messages were sent to her mother's phone number, which defendant claimed were unintentional. Defendant further testified that on the day of her arrest she heard complainant tell the officers that she was not sure defendant was the attacker, and asked to call her daughter to verify, and that later, at the precinct, defendant saw complainant with a younger woman, who she overheard say “[M]om, that's not her.”
Defendant's mother also testified, and corroborated that her daughter was with her at a laundromat and that defendant was texting on her phone at the time of the incident. On cross-examination, defendant's mother admitted that she had not previously informed defense counsel, the prosecutor or the police that defendant was with her on the day of the attack.
On rebuttal, the People presented testimony from the two arresting officers who stated that complainant told them she was 100% sure defendant was the attacker and that she never wavered.
The court found defendant guilty of attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1] ), attempted...
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