People v. McClain
| Citation | 88 Misc.2d 693,389 N.Y.S.2d 976 |
| Parties | People of the State of New York, in the Matter of an Investigation into an Armed Robbery on |
| Decision Date | 19 June 1976 |
| Court | United States State Supreme Court (New York) |
Eugene Gold, Dist. Atty. by Asst. Dist. Atty. Robert Brierton, for the people.
William Gallagher by John Hunt, for the defense.
The District Attorney of Kings County seeks an order of this court directing one John McClain to appear and participate at a lineup identification procedure.
The defendant is confined in an unrelated matter by the Department of Correction. An alleged accomplice of John McClain has made a statement inculpating him in an armed robbery on June 19, 1976 in Brooklyn, New York. The District Attorney states that the sole purpose of the request for a lineup is to determine whether John McClain can be physically identified as one of the alleged two perpetrators of said crime.
The District Attorney contends that a person may be compelled to appear in a lineup procedure for identification purposes when (1) he is named in an accusatory instrument, or (2) there is probable cause to believe he committed a crime, or (3) probable cause is shown to arrest a person. In these contentions the District Attorney cites in support Matter of Alphonso C., 50 A.D.2d 97, 376 N.Y.S.2d 126; District Attorney v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127; Merola v. Fico, 81 Misc.2d 206, 365 N.Y.S.2d 743; Matter of Homicide of John Aucelli, NYLJ, 7/2/75, opinion by Mr. Justice Cowin. (See also, dissenting opinion of Mr. Justice Hopkins, in People v. Vega, 51 A.D.2d 33, 379 N.Y.S.2d 419.)
The respondent contends to the contrary in reliance on Vega (supra), and Mackell v. Palermo, 59 Misc.2d 760, 300 N.Y.S.2d 459; indeed Mr. Justice Shapiro, who authored both decisions, relied on Vega on his earlier decision in Mackell v. Palermo.
This court disagrees with respondent's contention, for at the core of the Mackell v. Palermo and the Vega decisions see 51 A.D.2d page 37, 379 N.Y.S.2d at page 423 were not concerns such as fingerprinting, measurements, writing, speaking for identification, or Standing, but rather with procedures to deprive a person of his personal and private right to determine his personal appearances. This right, the Appellate Division of the Second Department, held in Vega, falls within the ambit of the First, Ninth and Fourteenth Amendments to our Constitution. Therefore, the order or a compulsion to shave a beard prior to a compelled appearance at a lineup and before he is arrested or charged with a crime involves a change and alteration of appearance. It denies, the Appellate Division wrote, to that person 'the right to an immediate return to the form of facial hair which he wore prior to his appearance in the lineup' and of course, the right to determine his appearance.
Here, in this application, there is no contention that any changed or altered appearance of respondent is requested or required; no more is sought by the District Attorney of Kings County than that the respondent stand in a lineup. The District Attorney of Kings County has served a proper notice of this application on respondent and the latter has had an opportunity to be heard...
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Abe A., Matter of
... ... the extremely sensitive issue of whether a suspect in a homicide investigation may be compelled, pursuant to court order, to supply the People with corporeal evidence, in this case in the form of a sample of his blood for scientific analysis ... The question has yielded ... Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127, app. dsmd. 38 N.Y.2d 923, 382 N.Y.S.2d 981, 346 N.E.2d 820; People v. McClain, 88 Misc.2d 693, 389 N.Y.S.2d 976; People v. Mineo, 85 Misc.2d 919, 381 N.Y.S.2d 179; and Matter of Merola v. Fico, 81 Misc.2d 206, 365 N.Y.S.2d ... ...
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Pidgeon v. Rubin
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