People v. McCullers

• Decision Date: 21 November 1973
• Citation: 33 N.Y.2d 806,350 N.Y.S.2d 904,305 N.E.2d 914
• Parties: , 305 N.E.2d 914 The PEOPLE of the State of New York, Respondent, v. Ronald McCULLERS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 904

350 N.Y.S.2d 904

33 N.Y.2d 806, 305 N.E.2d 914

The PEOPLE of the State of New York, Respondent, v. Ronald McCULLERS, Appellant.

Court of Appeals of New York.

Nov. 21, 1973.

Arthur T. Cambouris, Susan G. Levenberg and William E. Hellerstein, New York City, for appellant.

Mario Merola, Dist. Atty. (Daniel J. Sullivan and George S. Stone, New York City, of counsel), for respondent.

Order affirmed on the opinion at the Appellate Division, 40 A.D.2d 796, 338 N.Y.S.2d 63.

FULD, C.J., and BURKE, JASEN and GABRIELLI, JJ., concur.

WACHTLER, J., dissents and votes to reverse in the following opinion in which BREITEL and JONES, JJ., concur.

WACHTLER, Judge (dissenting).

I would reverse, vacate the plea and remand the case for trial.

During the course of an otherwise diligent and commendable investigation of a taxicab holdup, the investigating officer, Patrolman Finnerty of the New York City Police Department, permitted the victim to identify the defendant under circumstances which were in effect suggestive in the extreme.

Finnerty himself candidly admitted that after arresting the defendant he called the cab driver, Ernest Bush--who most significantly had been unable to identify the defendant on the day of the robbery some five months earlier--and informed him that he had 'apprehended the second perpetrator of the stickup' and that it was 'the same party that was brought into the station house on * * * the day the crime was committed'. Three weeks later when the taxi driver appeared at the Criminal Court building to sign a complaint the officer repeated his earlier statement and obtained Bush's signature an hour or more before affording the witness an opportunity to identify the defendant. The identification was not made until the witness, seated in the courtroom, heard the defendant's case called and saw Patrolman Finnerty escort McCullers from the detention cell to bring him before the court.

This procedure could hardly have been more suggestive (see People v. Hanley, 27 N.Y.2d 648, 313 N.Y.S.2d 868, 261 N.E.2d 905; compare People v. Logan, 25 N.Y.2d 184, 193--194, 303 N.Y.S.2d 353, 250 N.E.2d 454) and was completely unnecessary under the circumstances since the defendant had been incarcerated and thus available for a lineup for over three weeks prior to the Criminal Court identification. Any identification of a suspect obtained in this manner is utterly unreliable and the practice cannot be encouraged or condoned--on this the entire court agrees.

We are divided solely on the issue as to whether the prosecutor has met his burden of proving by clear and convincing evidence that the identification he intended to introduce at the trial was based on a source completely independent of the suggestive Criminal Court identification (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103). 'Application of this test * * *' the United States Supreme Court has said, 'requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which * * * are disclosed concerning the conduct of the lineup' (United States v. Wade, Supra, 388 U.S. at p. 241, 87 S.Ct. at p. 1940).

There is no doubt that Bush had ample opportunity to form an independent recollection of the man who assisted Warley in the holdup. Normally the fact that the witness has had a substantial opportunity to observe the person who...