People v. McLoughlin

• Decision Date: 29 April 1980
• Citation: 427 N.Y.S.2d 398,103 Misc.2d 1046
• Parties: The PEOPLE of the State of New York v. Adlene McLOUGHLIN, Defendant.
• Court: New York City Court

Page 398

427 N.Y.S.2d 398

103 Misc.2d 1046

The PEOPLE of the State of New York v. Adlene McLOUGHLIN, Defendant.

Criminal Court of the City of New York, New York County.

April 29, 1980.

Robert M. Morgenthau, Dist. Atty., by Moacyr R. Calhelha, New York City, for the People.

Leon B. Bolsky by Dawn M. Cardi, New York City, for defendant.

Decision and Order

STANLEY GARTENSTEIN, Judge.

Was the landmark Wade-Gilbert-Stovall Trilogy ¹ so modified by Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1976) that it now encompasses suppression proceedings aimed at identification evidence involving no police or state action whatsoever? The court's negative response to this question is given reluctantly. This reluctance stems from three sources:

First, we believe philosophically that the potential inflammatory impact of suggestive identification testimony is such that it warrants adoption of an across-the-board exclusionary rule (after appropriate hearing) directed at any such testimony not meeting the strictest standards of reliability and/or non-suggestiveness. This belief is held whether the identification at issue was state-based or privately based;

Second, the need for an exclusionary rule to this effect becomes even more apparent in the face of an alarming proliferation of private security forces many of whose employees have criminal records of their own. These forces are utilized in almost every business or walk of life to an extent which recalls aspects of frontier vigilante justice;

Third, because were we of a mind to follow these philosophical beliefs despite our contrary reading of Supreme Court cases, we could easily hide behind People v. Walker, 97 Misc.2d 171, 411 N.Y.S.2d 156, ² which holds in harmony with these personal beliefs, an act on our part which would involve considerable intellectual dishonesty.

THE FACTS :

Defendant is charged with several counts of petit larceny and criminal possession of a forged instrument. The acts in question all allegedly took place at New York University Hospital where defendant was employed. On January 5, 1979, defendant received a call directing her to report to a room in the hospital in which she was met by one Rocco Cornetta, a private security officer employed by the hospital. Here she was directed to furnish three exemplars of her handwriting. While seated there, one Alfred Nonnon, a supervisor of General Stores at the hospital and two employees of the General Store entered the room and identified her as the alleged perpetrator of certain criminal acts which took place nearly four months prior to the events in question. She is charged with these acts in the information before us.

At a Wade hearing conducted upon the consent of the People, the court raised the threshold issue of police or state action. Decision was reserved on the question of whether or not the hearing would go further once the constitutional ramifications of a lack of state action were ruled on.

THE WADE-GILBERT-STOVALL TRILOGY AND ITS PROGENY :

In 1967, the Supreme Court of the United States turned its attention to due process issues surrounding identification testimony in three cases which have come to be known as the Wade-Gilbert-Stovall Trilogy:

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, holding that "the vagaries of eyewitness identification are well known; the annals of Criminal law are rife with instances of mistaken identification" (supra at page 228, 87 S.Ct. at page 1933) and enunciating a rule in conjunction with Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, prohibiting an in-court identification following an uncounselled lineup except where the prosecution could demonstrate that it was not tainted by unconstitutional suggestiveness; and

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, recognizing that the conduct of a confrontation may be "so unnecessarily suggestive and conducive to irreparable mistaken identification" (supra, p. 301-302, 87 S.Ct. p. 1972) as to deny due process of law, but permitting introduction of evidence thereof along with in-court identification where the unusual necessity for the procedure outweighed the danger of suggestive confrontation. (Black defendant handcuffed by seven white law enforcement officers brought to hospital room of only witness to a murder where police reasonably believed the witness might die before less suggestive confrontation could be arranged).

Following the trilogy, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, refused to prohibit introduction of photo identification by witnesses to a bank holdup ruling that the identification procedure would be set aside only if it was ". . . so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" (supra, p. 384, 88 S.Ct. p. 971). The Supreme Court placed primary focus in this matter on the chance of misidentification. (See also Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1968) (repeated confrontations between suspect and manager of store which was robbed were so suggestive as to violate due process) and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1969)).

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, a rape victim's one-on-one showup and voice identification of the defendant seven months after the event was allowed to stand in light of the fact that the victim had been in defendant's presence both indoors and outdoors by a full moon for a substantial period of time, and her verbal description of her assailant matched defendant. Moving to a "totality of the circumstances" approach, the High Court held the identification reliable even though the confrontation procedure was suggestive (supra, page 199, 93 S.Ct. page 382). Applying this test, the court found "no substantial likelihood of misidentification" and ruled that "the evidence was properly allowed to go to the jury" (supra, p. 201, 93 S.Ct. p. 383).

MANSON v. BRATHWAITE :

Because Manson v. Brathwaite, supra, is the very foundation of People v. Walker, supra, the only reported holding on non-police or non-state action as forming the basis for suppression of identification testimony, it will be treated in depth. ³ In Brathwaite, a Black police officer who had made an "undercover buy" of heroin in a doorway standing some two feet from the seller for some two or three minutes, described the seller to another police officer who left a photo of defendant for him. This photo was identified two days later by the undercover officer. The Supreme Court upheld the identification under the "totality" and "substantial likelihood of irreparable misidentification" rules enunciated in Simmons v. U. S., supra. In doing so, it placed particular stress upon Neil v. Biggers, supra, stating (432 U.S. p. 106, 97 S.Ct. p. 2249)

"The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability " (emphasis added).

Brathwaite then discussed two different remedial procedures aimed at the problem of suggestive identification procedures: first, a per se exclusionary rule grounded on the principle of police deterrence by imposition of absolute harsh standards (cf. Smith v. Coiner, 473 F.2d 877); second, a "totality of circumstances" rule recognizing out-of-court identifications possessing "certain features of reliability" (supra, 432 U.S. p. 110, 97 S.Ct. p. 2250 (cf. U. S. ex rel. Kirby v. Sturges, 510 F.2d 397). This second approach which was adopted in Brathwaite was characterized by the Supreme Court itself as the "more lenient" (supra, p. 110, 97 S.Ct. p. 2250). Its rationale was clearly set forth in terms of preserving relevant evidence for consideration and evaluation by the trier of facts. Rejecting the per se rule, the court stated (p. 112, 97 S.Ct. p. 2252)

"The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant."

Brathwaite, therefore as characterized by the Court itself, was more lenient with regard to police action than might have been thought to be the Court's...